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COMMENTARIES
ON THK
CONSTITUTION OF THE UNITED STATES :
WITH
A PRELIMWABT HEVIBW OF THE CONSTITUTIONAL HISTOBY
OF THE COLONIES AND STATES BEFOIIE THE
AiWPTION OF THE CONSTITUTION.
Br JOSEPH STORY, L^i).
IN TWO TOLUME&
Vol. I.
FIFTH EDITION,
Br MELVILLE M. BIGELOW, Ph.D.
" MuMnlllim l|Uiir opoi Ht ; doa qinnm pndmtlk t dtll(*Dtll ■■• otTlUi nan poun ;
qaonunqu daMxIptlDn omolj HclputiUca moiUniki contjniiiar."
C[<!BBOp Di LiH-» Ub- S, emp, 3
"OorwuDsat kf & cootritmDn of hamu viidoiii to piotkU for hanuD w*du."
Bcuu.
BOSTON:
LITTLE, BROWN, AND COMPANY.
I8di.
Bitaied ueordlBg to ut ot Cbn^ren, In Oa jtaz on* tbonund dght bnndred tad
tblTtf-tbrce, by Joisra Stobi, Id Uie CUA'i OffiM ot th« Dlatrict CooR ol the Oiitrict
«l HMMChDMtU.
EnUred according to Act of Congnw, la tbe ;ur IBfil, \tj Wiluam W. Stokt, In the
Cleil'a OSes id the DiMrtct Court of the District of UuuchuMtU.
Entered acoording to Act of CocgrcM, Id (he ynu- 1868, hy Wiuum W. Stort, in the
Clerk'i OBee of the DiHiict Court of the Dtilrlct of lUHtchaMta.
Entered .eceordiog to Act of CoDgreaa, In the jm 18T3, bj Wiuiam W. Stort, in tbe
Office of the Librariu of Coogreu, ■! Wuhington.
Copffrighl, 1891,
Br WnxuM W. Stokt.
Jobs Wilmv avd Soh, Cambudoi.
TO THE
HOXOUABLE JOHN MAitSILVIX, LL.D.,
CmiP JOSTtCS OF TUB UillTKD ITATK* QF AHCRtCA.
Sir,
ABK the favor of dcdicnUng this vtoA to voii. I know not to
whom it coultl nith so much proiiritty In- <)r<Ucatc<l lui to one wl>o«e
youth van engaged tn the Mtluous eutcriirUm of the It<- volution,
^wboM manhood Assisted tn fnuuiug and supporting Uic nnliona) Con-
Htitution, and wituse maturcr years have been devotcil to tlic task of
iiiifoltling H» }H>wtjm and iHuHinting its principles. Wli«n, iiidecil,
,i look batck u|>on yotir Jiidkial labon during a period of thirty-two
it is ditlk-ult to xipprcMt aMtoniHtiment mt Itivir extent wul
^variety, and at the es act ieaniiii|[. the profound ressoning, and llie -
BoUd principles nliieh they everywhere dii<p1ay. Other ju<lges have
attained an elevated reputation by similar labors, in a tilngle dopart-
menl of jurinpnidem-e. But lu one department (it nn-d M?nn-rly be
■aid titat 1 allmle U> that ofponatit^itwoal law), tlw common con*
seat of your «>»ntrynicn ba» admitted yoa to fltaitd withont a rivxl.^
Posterity will assuredly conflnn. by its deliberate awar^l, «rkat tl»e
present age bas approved as an act of undisputed justice. Yo«r
expOBitions of constitiitional law enjoy a rare and extraordinary
antbority. Tbey conatStiite a monument of fame far beyotid the or-
dinary mcraorialu of [lolitieal and military glory. ,*rhey are dcatlned
tn eulijjbti-n, iitMlruct, and convince future grni'ralionn, ami can
Bcartely juTinii Imt with the memory of the ConHtilution ituclf. Tlw-y
are the victoriea of a mind acctiatomrd to grapple vritli ditKmilttea,
capable of unfolding the rao«t comprehensive Iriitlix witli mnM-uline
I kiiiiplii-ity and si-verc logic, and prompt to dii^fipate Uic illuMinn.t of
pngenioua riotibt and subtle argument and impa»«lonc<i eloquence,
liey remind tis of some mighty river of our own country, which,
Lgatlicring in its coarse the contributions of many tributary slroame,
|H>urs at last its own current Into tbe ocean, deep, «lesr, aod
, irresistible.
"But I confess that I dwell with even more pleasurr u|kiu tbe entirety
of a life adorned by coniiateut principle*, «>d tilled up iu tlie dlaebarge
It dedication.
of virtuoTiB duty ; where there is nothing to regret, and nothing to cod-
ceal ; no friendehips broken ; no confidence betrayed ; no timid sur*
renders to popular clamor ; no eager reaches for popular favor. Who
does not heten with conscious pride to the truth, that the disciple, the
friend, the biographer of Washington still lives, the uncompromising
advocate of his principles?
I am but too sensible that, to some minds, the time may not seem
yet to have arrived when language like this, however true, should meet
the eyes of the public. May the period be yet far distant when praise
shall speak out with that fulness of utterance which belongs to the
sanctity of the grave.
But I know not that. In the course of Providence, the privilege will
be allowed me hereafter to declare, in any suitable form, my deep
sense of the obligations which t^e Jari&pradence of my country owes
to your labors, of which I have been for twenty-one years a witness,
and in some bumble measure a companion. And if any apology should
be required for my present freedom, may I not say that, at your age,
all reserve may well be spared, since all your labors must soon belong
exclusively to history?
Allow me to add, that I have a desire (will it be deemed presump-
tuous?) to record upon these pages the memory of a friendship vhich
has for so many years been to me a source of inexpressible eatisfac-
tioD ; and which, I indulge the hope, may continue to accompany and
cheer me to the close of life.
I am, with the highest respect,
Affectionately yonr servant,
JOSEPH STORY.
Caubkbqw, hovMrj, 1883.
PREFACE TO THE FIFTH EDITION.
In this erlition tlie autlioriticH are brought down to
January, 1891 ; and to the dccisious of the federal
Supreme Court a considerable number of decisions from
the inferior federal courts, and front the State courts
has been added.
The editorial notes have been separated entirely from
the not«^ of the author ; the latter ma acrojfs the page,
after numerals, the former are in double columns, after
letters of the alphabet. The notes of the last edition (by
Mr. Justice Coolcy) have generally been retained, subject
to such chan|:es as time has made necessary ; in a few
instances, they have been recast ; in some instances they
have been abridged, in some enlarged. Whenever they
have been reprinted without change, and contain original
discnssions as distinguished from a mere statement of
the cases or of familiar facts, the initial C. has been
added to them. The chapters added to the work by the
same distinguished editor are also retained.
The present editor's notes are mostly in the second
volume.
A table of the cases cited has been added, for the first
time.
U. H. B.
FKOM THE EDITOR'S PREFACE
TO TU£ FOUUTH EDlTIU^f.
Is preparing for the press a fourth edition of Mr.
Justice Story's Commentaries on the Constitution, it has
been thought proper to preserve the original text without
alteration or interpolation, and to put into notes all di»-
cus»iious by the editor, as well as all references to subse-
quent adjudications, public papers, and events, tending to
illustrate, support, or qualify the positions assumed in the
text. The new amendments, however, seemed to demand
treatment in the body of the work, and additional chai>-
ters are given for that purpose. In preparing them, tlie
editor has not been ambitious to enter upon original dis-
cussions, or to advance peculiar views; and he has con-
tented himself with a brief commentar)- on the provisions
and purposes of the amendments, aiming, as far as possi-
ble, to keep in harmony with the opinions and sentiments
under the inspiration of which they were accepted and
ratified in the several States. . . .
CstvKMtrr or Uichioas, Axk Akkok, 1873.
PREFACE.
I Kow ofl«r to Uie public nooUier portion of tbe labors devolved on
me in die execution of tbe duties of tbe Dtkoe Professorehip of I^w
lu lliirvitrd l'uiri>T»it^-. TIm importance of tb« iiub>ecl will hunlly
be doubted by nay pcnons w)>o have b«cn aocnstomod to deep re-
lectioD upon tbe natnre and vtdue of tbe Constitution of the UDit«d
St«t«8. I can only regret that it has not fallen ioto abler haodfl,
with more leisure to pre]>arc, and more various knowleilge to bring
to pucb a task.
Imperfect, boirever, as these Commentaries may seem to those who
are aoeuBlomed to demand a perfect llnlab In all elemenlarv woriis,
Uiey have been attended with a degree of uninvltii^ Intwr and dry
mfcarcb, of which it i« scarcely i>os)tiblc for tlic general reader to
foRD any adequate estimate. Usny of the materials lay loose and
eotttered. and were to l>e gathered up amon^ pamphlets and discus-
alons of a Leinporary character; among obM'ure private and public
documcntH ; and from collectioits which retiuired an eiEbauttiing dili-
gene* to master their contents, or to select from important msi«cs
a few facts or a ^itary argument. Indceil, it required no small
labor, even after these sources were ex])lored, to bring t<%ctber tbe
Irregular fragments, and to form them into groupa tn whicb tfaey
might illustrate and support each otlier.
From two grt-at source*, however, I have drawn by far the gnrate«t
)>art of my moiit valuable materials, llicso are, Itie l-'ederalist, an
incomparable commentary of three nf tbe greatest statesmen of their
e, and tbe extraordinary JudgmenU of Sir. Chief Jnstico Marshall
'upon constitutional law. Tlie former have discussed the stnicture and
FREFACB.
oi^uiizaUoa of the natioaa) goremmeDt, io ati its depftrtmcut*, wiUi
ailinirublv TiilncM and force. Tli« laiu-r luis ex|>ou[uled Ui« appUca-
tioa and ItmitH of iIk jxtwcrs and faiK-tiuiut villi unrivuUed profound-
DCBfi and felicity. Itie Federalist coold do liltl« mora titan a1at« Ihv
objecta aud general beanng of these powers and fuactiooB. ThA
masterly niaKoiiiDg of the Chief JuaUce liaa followed them oat to
tbdr nltimatc rc«ult« and iMundariea with a prccisioo ai>d deamesa
•pproacliitig, as near as may bo, to mathematical d^monBtnition.
The Federalist, being written to nie«t the moet prevalent popular
objectloos at tlie time of tJie adoption of the Constitution, hoa not
attempted to puraue any very exact order io ita rcaaoniiiga, but
baa taken np suhjedx in mcli a tuanncr aa was best adapt«^) at tbs
time to overcome prejudices and win favor. Topics, therefore, hanng
a natural connectioa are someUmes separated ; and tlluBtrationB, ap-
propriate to several imiwrtaut poiuts, arc sometimiw prcaeoled in an
incidontol diMDsaloa. I hare transfcrriKl into my own pages all which
seeinwl to bt of pennaacnt importance tn that groat work, and hart
thereby endeavored to make Its merita more generally known.
Tlic reailer miutt not expect to Hod in these pages any novel views
aiKl novel coDtlructiouit of the Conittitntton. I have not tiic amlntion
to be the autlior of any new plan of liiterpratliig the theory of ttic
Constitution, or of efdaif^ng or narrowing \te powers by logenioua
subtilties an<I learned doubts. My object wilt be auGBoientty attained,
if I shall havfi ouocM-dt^l in hrin^ng before the reader the true view
(rf its powers, maiotaineil by its foiindem and fricndit, and confirmed
and illustrated by the actual practice of the goremmeot. llie czpo-
siliona to tw found in the work are less to be regarded as my own
opinions tban bh thoT of tin! grvnt niimla wlih'h framed the C-ousli-
totion, or which haio been from time to time caIIoI upon to admiustcr'
it Upon eabjects of government, it has always appeared! to me that
metaphysical refinements are oat of place. A constitution of govern*
tnent Is addressed to Uie <'ommn».s«aac of the jtvoplc, and never wasi
designed for truUs of I'^icul skill or visionary spccalatiom.
The reader will Mmetimes find the same train of reasoning brou);ht
before him In different parts of these Commentaries. It was indis
ponanbic to do so, unless the dIscasAlon was left Imperfect, or lh« '
PREFACE. Zl
reader was referred back to other pages, to gather np and combine
diBJointed portions of reasoning. In cases which have undet^one
judicial investigation, or wliich concern the judicial department, I
have felt myself restricted to more narrow discussions than in the rest
of the work ; and have sometimee contented myself with a mere trans-
cript from the judgments of the court. It may readily be understood
that this course has been adopted from a solicitude not to go incident-
ally beyond the line pointed out by the authorities.
In dismissing the work, I cannot but solicit the indulgence of the
public for its omissions and deficiencies. With more copious mate-
rials, it might have been made more exact, as well as more satis-
factory. With more leisure and more learning, it might have been
wrought np more in the spirit of political philosophy. Such as it is,
it may not be wholly uselras as a means of stimulating abler minds
to a more thorough review of the whole subject, and of impressing
npoD Americans a reverential attachment to the Constitution, as in
the highest sense the palladium of American liberty.
Januabt, 1883.
TABLE OF CONTENTS.
Cases Cited sxi
The CoN9TiTcno> ixxv
FKELUIUfAHr ClUPTER 3
BOOK I.
niSTOBT OF THE COLOMIEB.
CHAPTER I.
BkUob
Origin and Titie to the Territory of the Colonies 1-38
CHAPTER n.
Origin and Settlement of Virginia 39-51
CHAPTER III.
Origin and Settlement of New England and Plymouth Colony 52-CO
CHAPTER IV.
Siaseachusetts 61-77
CHAPTER V.
Kew Hampshire 78-81
CHAPTER VI.
Maine 82-8.1
CHAPTER VII.
Connecticut 84-0;i
CHAPTER VIII.
Bbode Island 94-102
/
XIT CONTENTS.
CHAPTER IX.
BwHoa
Maryland 103-110
CHAPTER X.
NewYoik ni-lU
CHAPTER XI.
New Jersey 115-120
CHAPTER XII.
Pennsylvania 121-125
CHAPTER XIII.
Delaware 126-127
CHAPTER XIV.
North and Sonth Carolina 128-142
CHAPTER XV.
Geoi^a 14S-145
CHAPTER XVI. /
General Review of the Colonies 146-158
CHAITER XVII. /
The Same 159-197
BOOK II.
HISTOHT OF THE REVOLCTIOS AND THE COKFEOERATIOM.
CHAPTER I.
The History of the Revolntion 198-217
CHAPTER n. »'
Origin of the CMifederatioa 218-SS8
k
CONTENTS. XV
CHAPTER in.
BacUoD
Analysis of the Articles of the Confederatioa 229-242
CHAPTER IV. "^
Decline and Fall of the Confederation 243-271
BOOK III.
THE COKSnTOnON OP THE CMITED ffTATEB.
1^ CHAPTER I. ^^
Origin and Adoption of the Constitution 272-280
* CHAPTER II.
Objections to the ConstitQtiott 281-305
% CHAPTER m.
Nature of the Constitution — whether a Compact .... 306-372
CHAPTER I^^
Who is the final Judge, or Interpreter, in Constitational
Controversies 0 ^ ■ 873-3!l6
CHAPTER V.
Rules of Interpretation of the Cocstituttou 397-456
CHAPTER VI.
The Preamble 457-517
CHAPTER VII.
■ Distribution of Powers 518-544
CHAPTER VHI. *
The Legislature 545-570
CHAPTER IX.
The House of Representatives 571-689
XVI C0NTBKT8.
CHAPTER X.
■eelloB
The Senate 690-813
CHAPTER XI.
Elections and Meetings of Congress SH-6SS
CHAPTER XII.
Privileges and Powers of both Hoases of Congress. . . 837-872
CHAPTER XIII.
Mode of Passing Laws — President's Negative . . . 873-904
\j
CHAPTER XIV.
4
Powers of Congress — Taxes . 905-1053
CHAPTER XV.
^^ Power to borrow Money and regulate cRnmerce . . . 1054-1101
CHAPTER XVI.
^\j Power over Natnralization and Bankruptcy 1^2-1115
#
CHAPTER XVII.
N^ower to coin Woney, and fix the Standard of Weights
*-- and Measures 1116-1123
CHAPTER XVIU.
Power to establish Poat-oflBces and Post-Roads .... 1124-1150
CHAPTER XIX.
Power to promote Science and Useful Arts 1151-1156
CHAPTER XX.
Power to punish Hracies and Felonies on the High Seas . 1157-1167
CHAPTER XXI.
Power to declare War and make Captures — Array —
Navy 1168-1198
CONTENTS. XVil
CHAPTER XXn.
BwlUa
Power over the MOitia 1199-1815
CHAPTER XXTTf.
Power over Seat of Government and other ceded Places . 1216-1286
CHAPTER XXIV.
* Powers of Congress — Incidental 1236-1258
CHAPTER XXV.
Powers of Congress — National Bank 1259-1271 ^
CHAPTER XXVI.
Powers of Congress — Internal Improvements .... 1272-1281
CHAPTER XXVII.
Powers of Congress — Purchases of Foreign Territory —
Embargoes 1282-1294
CHAPTER XXVIII.
Power of Congress to punish Treason 1295-lSOl
CHAPTER XXIX.
Power of Congress as to Proof of State Records and Pro-
ceedings 1302-1313
CHAPTER XXX. ,
Powers of Congress — Admission of New States, and Ac-
quisition of Territory 1314-1321
CHAPTER XXXI.
— Powers of Congress — Territorial Governments . . . 1822-1330
CHAPTER XXXn.
Probibltions on the United States 1331-1352
^ CHAPTER XXXIII.
Prohibitions on the States 1353-1373
VOL. I. — 6
XTUl CDKTEnS.
CHAPTER XXXTf.
Pndiibntioiis on the States — Impsirii^ Ck>ntnctB . . . 1374-1400
J CHAPTER XXXV.
IVohibitioofl OD (he States — Tonnage Datiea — Haking
War 1401-1409
CHAPTEB XXXVI.
Ezecntire Department — Orgaaizatioo of 1410-1488
CHAPTEE XXXVII.
' Executive — Powen and Datiea 1489-1572
CHAPTEE XXXVm.
The Jadici&ry — Importance and Powers of 1573-1798
CHAPTER XXXIX.
Definition and Evideace of Treason 1796-1803
CHAPTER XL.
Privileges of Citizens — Fugitives — Slaves. .... 1804-1812
CHAPTER XLI. .
^ Gnaranty of Republican Govenunent — UocI^xuT^ Making
Amendments 1813-1831
CHAPTER XLII.
Public Debts — Supremacy of CoDStitntion and Laws . 1832-1842
CHAPTER XLIII.
Oaths of Office — Religious Test — RatiBcatioD of the
CoostitntJon 18J3-1856
CHAPTER XLIV.
Amendments to the Constitution 1857-1909
CHAPTER XLV.
Concluding Bemaik* 1910-1914
CONTENTS. XIZ
CHAPTER XLVI.
The Emancipation of the Slaves 191&-1927
CHAPTER XLVII.
The Fourteenth Amendment 1938-1968
CHAPTER XLVIIL
Impartial Suffrage — Conducing Remarks 1969-1974
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V. KarrinTlon ii 646 ^^H
Barriaon i*. Slrrrr IL 160 ^^H
^^^H fHma c. Ilodite* IL 688, fiSO
HarriwM Juaiicca t. Ilotlaad L 3)0 ^^H
^^m Cl«ne«atw Ferrr 0» «- FMiMyl*anik ii 1.
Hart t. H«iil«non 11. 7M S
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HawkiM r. IJaiaa/a Lm»«« H. 208, 170. ^H
lUwthoimB a. Calaf a 966, SM J
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tllinoia Canat c. Chicagv R. Co. IL M ^H
^H B^M »- HiMOfri ii. 681
IndiaDapolu r. Gcuol L 108 ^^|
ladiaB Chief. Th« il 384 ■
^M Bv* r- PuUlu StMnHhIp Co. a 18
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Inglii «. Sailor'a Sung Tbrbar U. 490, 6;t ■
^^^ HMd Hener Cun U. «. 16
Inman Stcamtliip Co. v. Tinker L 788 ^^|
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iMland V. 'rtnupike Co. ij. 866 fl
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^B p. BluMv U. 406
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Jacnbi p. SmaljinMil U.Ut ^J
Jaequolt* e. UuKUnon Ii. 101 ^^1
^1 Iliichcock r. Aick«n 11. 187, 18^ 101, IttS
Jamc* p. Alien 11. 180 ^^H
^M Boa ir, Jaq>CT Co. U. Ue
11. CMuraonwcRltb U. 661 ^^B
^H Bokc r. HMdctaon H. 098
Jaitca c Rarnolil* 11. OM ^^H
Sumtf r. C^umbia Ini. Co. iL 4T0. 636 ^^
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^^^ BoQlBgnorth >-. Tirslnlk 11. 488. 800
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^^^V BolUM r. J«nni*on B. !70, 886
Jdbit* r. Ankrar U. Ill ■
^ TlaiB* Ufi* In*. Co v. Dnmi 11. 636
Jennicigi r. CnnOB L 387 U. 466 ^^M
^H Bone In*. Co. c AopuM il. 4
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^1 p. Mono 11. fiS6
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B 868
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■LHorwlGh 11.717 ^H
■ Bopkkii K BoU L 187. SOT
o. UnitiHl Staita ii. 870 ■
^H BmwoBMa v. Tha Nonk Caro&M i. 400
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■ S30t 840; H. 46. 118. 119. U1. 124. IIE.
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JmlUard r. Groanmaa U. 67, aU ^H
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K>Ilr r. ITarriaon IL 002 ^^
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^^^ TQL TOi 704, 181
V I'itttbarab ii. 671 ^^1
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^K KsnMck* p. Duniion 11. 601. 688
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£68.081 ^^
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LooliviJJc Gaa Co. n. ClUaM*' Gaa Co. ^^B
^^^^1 Kilbourn r.TliOMpMHi 1. OM
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^^^1 Knbuin r. Woixlworth li.
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^^^V KimmUb *. BftU 1L4.&81
LoBMibctv r. Peofile ii. 09T ^^^|
lawtj > Fnncia it. 246 ^^B
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LucM P. Sawyer ii. TOO ^^H
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^^^B Rmbnd r. llotrtikiM 1. 7fiS
LaUiarr, Boidea i.2»: JL 111. 110. 131. ^V
113, 121. 126. oHI. 60S ■
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^^^H Ktlngeri'. MiuouTi 11.182
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Macbfutli <'. nntdimaad U. 477. 478 ^V
^^H v. t>!c 57
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McCall >'. Cilitomia ii. 1. 0 ■
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^H tatartliff In*. Oo. *. Ftancb ti. Ese McClurg ■'. Kin«*lMd IL 66 ^^H
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^^B Lane r. IUkf>r U.II7
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IGO. 16S. MM. 015. 062. 663. 702 ^H
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^^^B bnmon r Naw Tgit U. 6M MrKlmaTle ■■. Colini 11. 193, IM ^^B
^^^^ e. I'ooplo ii. MtK Ak'irtnth b. United SibIh li. «0 ^^B
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^H UvU •'. L««U II. SM McMahcr r. VjntinU a US, 9M. XT ^^B
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^^^H lieraw Tax Cmm If. 2S Mack«>y r. (V>i[e 1. ■» ^^B
^^^B Uneoln •, Ripitk il. 702 HcKIm r. O.lom i MB ^^B
^^^V r, Tovtr n. 192 1 r. Voorl.kt It. OB ^^B
^H Lii«ki ■- Koclner IL 407 ' Hukln <■ Cnll«<l StatM B. 1«S ^^M
^H l.'ln>lniTihla 11. 487 1 MfUiirlne r. Mnnra* U. 198 ^^B
^M UtOt Kwk R. Co. ». WortbtB H. 671.861
M-MllUr, r. M'KHIl B. 68, 282 ^H
UcMllini >' AiidartOB U.&7I ^^B
^B 1L664
KIcNlol, A'f Mrtt L 789 ; a SS, 4M ^^M
Magnolia, "nt* IL 468 ^^B
^H U*r Stock Co. •■ CtfMot UreSudc
^M Co. U. 722
HainilM ■>. Magnira IL 3T1 ^^^|
^^1 litlnpinn r. Mary bod buuranoe
MallDII r. IVxier U. HB ^^B
^H Co lU 187
Manhardi r. I-olcntram IL 46S ^^H
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Hanro r Almcidi B. ISA. 470 ^^B
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S:i. 378. STO, Sgl. 388. 896. 463. 482. ^^B
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^^^B LertMu r. Claili* 111
418. 601. 60S. 60SL 6091 610. 611, 630: ^H
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M«((i«in f , Stata U. M
Maul r. Sulc a SI
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MbvIk" o. ThalchtT a »1
Unvurd I-. tliU U. 217, 2»K ST3
Meade t. Btale li. 676
H««haiiict' Bank p. UdIod Bonk ii. Ill
Mcdtanka' « Tnilen' Bank r. De-
bolt 11.203
V, Thomaa iL 2SS
Mnlby. £*' parU U. a20. 24-1
Meilnajr r. Kaliok It. TU
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r. Uiiiud HUIM ti. S6T
Meoiplii* R. Co r. T«iw«aM li.S68
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M«rli>a. Tl.« |i. 470
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H<4z|Rr. /" " i(. 687
HilM r. C'-aldwdl li. 676
MiltPT T. Nf» York il. S8, M8. »»
Milli f. WillUiiw 1. 20S
MiBa*apolb K. Co. c B*ck«>tli U. Wl
MiaiMapalia Hf- Co. r. Ueirlck It. G81
MiMnMa r. Bartwr L 739; li. -t. 267
MiiMV r. HapptnMIt il, 40G, 681
MlMol •■. DtilaiMpliia Rr- 0>. I. 7&7
MlHdMipTii r. JoloiMB L 290i » 893, SSO
MiMOUTi r. Ijmi* li. 881
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r. MacksT It 081
Ullclitll I- Clark B. 268, 101,
V llarmoRv )L A70
Mohllo r. KImCall II. 2t
Moncjr e. I.f ach iL M9
H«nnM r. lAoagla* IL IW
MoniKomtT? c Kanon IL 303
HontpdNV F, ):a«t MonlwIUr 11. 200
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Nona r. New OrUaa* il. 4. IS
Hor^an r. Ndtoa ti 111.071
V. Partiiiu IL 13
Horgiin 8i*«inah(p On. k I«iiliiuia
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Mormna Oiim-li D. Unil»il SUW*
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Motton V. Starker IL nS
CL ValMUae U. S66
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Muady r. Monr«« U. 256
MUDD p. llUnola IL <j63,C06,«8l66«,
701
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f. Mcnuthj y. UU
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Kapton V. tpaton IL Itt
N'MbviUe 1{ Co. T. AltlMuna II. 081
r Slate iL 4. 670
NaMua, Tho IL 47S
Natiodil Bank r OMnmoawMlIk
L 767, Its
Kationa r. Jolinioa ii. 4T(
Ktal r. Dclawuo ii. 681, 716
p Green IL £76
N«a» t. SlMccr It. «67
Stilttm r. Garza L 739
Kflwn *, Inland &. 460
Ncamitli i: t>liel<}on IL 675
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Ne^lir'n Ailni'n *. BInkty ii. 70C
N#w tvoiiUnd ^cNir Co. v Blirtn li. CTt
N«w llampahito r. IxiuUiAiia II. 478
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K*v Jmcr '■ WltooR IL 301 1
r Yard 11. 1M8. MS
K«« JonoT 8tnni H«f . Cb. v. Bier-
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llcU Co. iL M7
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a. Budd iL 660 ^H
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a. Boll a. 906 ^H
^H O'lCeUr r. Alhcni Uuuf. Co. U. 106
a. Bulltr fi. 331 W
^H OImj r. Arnold IL 312
a. Coliiun it 164 J
^H OiitUi] Bank >. Ffmw U. T06
a. Coanmiaaionm L T6T ; IL 2 ^^H
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a. Coaiad«u»iiar< of T«xu li. 383 ^^H
^H p. Umo ij. 66
p. l)ran it, 117 ^^H
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p. Draper 1. SOS; ii. 37 ^H
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P. Gt»lfi«y iL 132 M
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p. Ljtioli il. 186. 679 M
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p. M'lrrii IL 966 ^^M
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^^^K PufoiMl c. tlnllcd SIMM II. 338
Parmr r. CMnmoiiwaalili 1. 749; IL 32; V
^^H Pirtali i>. K»wet U. 705
<t»l ■
^^^ Vukn r. Kane 11. «A
PaMnbnnt p. MaltlMr 1. 208 ^^M
^H r. UTcrnun U. 108
Plwlan p. \1rrinia IL 2U ^H
Phdpa p. nolka* IL 180 ^H
^^H ■. I>t>«itvplao* U. 6T6
^H PamrlM r. Uwrrnc* H. ST3. 4S3. TO!
P. McDonaM IL lU ■
^H Puwmt F. Bodloid U. 461. U4. 666
PMIadalphIa B. Oi>. a. PonMrL ■
^B « ('Mkrjr fi.267
vania IL 18 ■
^H V KiumB ii.U03 PUIa<lelplii« Si«>nwhip Co. ¥. ■
^H PauaUfcrCuM ii. 10
PpciMrl'«nla iL 12. 16 ^fl
^H httomm r. Eaktnelgr 1. 7%)
Phllllpa e. Htiauv ii. 187 ^H
PlMtnlx Ina- Co. p. CnamaonaMlli il. 684 ^^H
^H hiri ». Virginia il. 4. 606. 68?, 667. 0(M.
^H
l'><-k*r>l r. Puttmiin Car Co. 1L4, l'iL16 ^H
^H FiwIaU*. Oaric L 111; il S04.ST4.40;
fictnn'* Ca*o IL 187 ^H
^^^K FaxiaM-4 Com 11. 647. Mi
Placn of MaKfaandlaa, 680 li. 467 ^V
^^^■TimMaa *. TwwikU IL 671 Plaros r. Cankkdon 11219,226.244 ■
^^^V PfMB f. P»k U. 616
PIko r. HaBonn 1. 312 ^^
Plqua Bank v. Rnonp II. 2SS. 964, MS ^^1
PI(uburghR.Co.p.naM7[*«ai« H. U ^^1
^^F ¥me r. M>->riiiin L 168
^H Paitra >. Xbw Hwiptliiw ^■4
^^, XIX ^^^
CASES CITEO. ^^^^^^^^^^H
^^p
F— t*m ■
^ riMiior*' Riitik <'. Bhup
II.MK
Ktmrdo r. Oaidu B. U^^H
^H Ilumb I*. Sawjcf
U.ItM
Itii-c r. Parkuian 11. 706^^1
^H Pluamier r l'iumin«r
Lsia
Kbdi >'. PlandM* (i. SST^H
^H V. Woodbourne
li. ue
Btttimanil R. Co. r. Rkhmond U. ai&^H
^1 PmnduUr r. GrtMhov U. U), fiSS. MT.
6(dc^^H
^H
266. 4«
IUhhi r. Fnrr IL ItM^H
^H Police Junr I- $breT««rt
u.aae
^M Polk r. WmOal
il. 6T6
Robliui* P. Sliolbf TixtiiK IHttnet IL 4, ■
^H PoiiJiT F. (i rabaiB
ii.3n
10 M
^H I^alerllclil i*. Clark
U.&T6
R«bbin*'« Cue iL 887, 4Sft MOj^J
^H l^NHMtw-Gcnent p. Eait^
a. T6, m.
Robcnhaa p. R«iib i. I0^^^|
^^B
489
Rolwrti p. B<Mt<in 11. '(MI^^B
^H Pttiu>4 r. Tunik
H S3
llobonaan t, Piokrell it. IM^^H
^H l*uiinQ r. CuoainomrMUb
ii. 081
HobiMoa p. CampMl K, 461. 46^H
^H Pntt p. Turn
ii. 7P0
r, CumD>ai»r«lElk InB, Co. i>. 67^^H
^B Pn<u«r e. Itllnol*
iL US. 040
t. Howe 11. ^tt^^^H
^H I'iMton r. lJro«dn
■i &7i
HobliHUO. Hx HirM ii. ti'^^^l
^B Prica I. Ilofikin
fi. 706
Rock l«lnn>l Bridiie. The 11, *m^M
^H Prigyr. Pcnntjlranis
U. 6»
Ilouk**^] P. Hubtoll'* Adm'ra ii. «6I, M^H
^H Prixtt Cmm
ii.W
Itnpp* c. CbuKk U. aU. 6I^^H
^H Praprlotor*, Ac n. Labor**
11.706
Kmc c Hiinri7 U- 28A, 4a^H
^M PrDridtoM lUnk c. UIHitfi
.762 ill. »N
Kowp. nupal U.«CT
^1 Provldrat Iml r. JarMT Cltr 11.671
1'. Irving U. W
^H Piuivollr B. Grmn Bty CmmI Co. U- M^
r. M..-I.ADS R. ett
lt«*a'i C^ao U. aSl
^H
Rovwi r. ilunatU U. 616, 676
^H QDMkmbiuh c. Dank*
li. £67, 26(1
Itonknd V. Lfldiga t 9
l(or*» r- VirginU U. W. H9
Roynll. Erp-iitt ii.818
Ituc-kcr* . tAs H. 4*0
^1 bbnr, /» r«
il. f.
^^^ IhilrMd Cn. p. GklaM
(1,288
liuk- I' l-aiker 11. 101
^^^ft K Hwrit
li.4»6
^^^^1 •. JohniMi
il. 67
,
^^^H B. HcCImv
ii. 27J
Sainjr 1^, ifinllh U. HibM
^^^^P n. HujrUnd
ii. 16
t>i. Anno'a Anvluin t. Ke« Oik«ii( ^^^g
^^^^■^ V. SupCTTtMIS
li. 2fi8
il. S06. an^M
^V «. Whiiuin
B. 490. KM Rr. Jagn <I> Cuba. Tha li. 47{|^H
^H Balatgll R. Co. v. Ktii
H. 347, tSS »K Joan BapiUU. Tha li. 40^^B
^H Ranil T, C<Mn>iuDV«*llb
li !tl\ > Si U<it««co. 'rtw U. 4«d^H
^H Raiiilall c Krninr
il. WT. av)
Si Louu r. Alien t-WW^^I
^H Rniiilnlpli r. Ouud
li 2ltt
*. Perrj- Co. iL tS^^I
^H B*pe [. ll«Miw
li. II>3
P, KubkI il M^^H
^H Kmikr >'. IVopI*
ii. 321
Saada ■ K-biiBBd* IL M0^^l
^H IIhidIixri I-. CunliMt
11, 187
p. Mlnitiie Ri>er Imp Co. iL 671 ^
^1 B»^>l r. Whtht
11. 003
fiati PranciKv. 'Tliu ii. 4011 J
^^t Kflgnl. £t f urU
^H R4>BUi> ■' Vnxl
^H Saiioboih F. llDQt
11.686
8anu Clara r. Souibcn Fioiflo R. ,^H
ii, 6Hn
C«. B. WI^H
il. M8
Saaia Cm. Th* ii 4ija^H
^H Bdnvirk r, Kano
^^^ Bub. Ball
ii, &T(I
8«nl« ', Stale ii. 709|^^H
fl W7
^■rali. "n-D il 4i:a^H
^^^^K p. Bmnptua
1.100
SaltoriM P Ualbf '*na U. 'JVi. ■HO. 'iM.^^
^^^H p. Sonku
U.osa,a3Q
273, TiH. E74. bll. 7lH:^H
^^^^1 c Cowle
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Sawriir, £r nirit |1 Ml^^H
^^^^B V. Cnwbjr
Lei«.sso
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i. IBI
Sch«ndk« BoilUncCo *. WeUli II A^H
^^H n T<il>b«
11 (m Scliotcv r. RMd ~ LAUW^H
^^^ P, WUk*«
■- lft4 Soull ■' Pilkiuclioa iL IM^^I
I €09. OM <- Ssndrurd 11 SDO. 406, »1. Ot^^H
^H ReynoMa e- BaJilirio
II- 2M »rftn r, Celirall il. fllM^H
^^^^ B. Oar;
11 rfi? .^lUliy r, Rpiltnn ii. 7Af^H
^^^H
jitrairallofi Caan ii U'lA^^H
^^^V p. DttiUid Sniei
inHinai' Mivor tl 7i'3^^H
^ Rlimta IbUiuI p. UaHaebiiMiu. > ^'S . , stieii>r ■ Ovr li. otiv 1
h
U.G0IX603l8bepbtTdr TKjrlcr 11-470 1
^^^^^^^^^^^^^P QXtU 1
^^H «iMiiii * OMo u 3G8. -an
State >. Try U.m 1
^^^B Bh>pl> r. MiU«r li &T5
*. GmMd 1. 767 ■
^^^B Stiim >. S(*i* ii WO
r. HayM U. 717 ^^
^^^1 SlMwar** Cm* 0. *IA
r. K«iili IL 221.374 ^H
^^^H .8br«T«iu>K r Cole l 300
r- Kuavon 1. 304 ^^M
^^^H Siwuaway r. StiUmm iL 1!H
r. I.«lira U. 042 ^H
^ ftllliiui) <-. liridgcCo ii. 1»
^H 8itT4^ l.al[c lUnV h. UanlinK ii IWi
r. IHaniilnK II. SI ^^M
w. Hathcw* 1. Oil ^^1
p. Urdbnnr B. CM ^^|
^^^^B Stlrvnnaa's Ci«« ii. G^l
r. N«al IL 3S2 ^^|
^^^^B ftUM e. GTG
c Newark a 378, 706 ^^1
^^^F Skm't C«M ii. &!MJ
r. Nonh, H<tl. li 68T ^^H
^H Sinking Faixl Ciws ii. SOS. 369
V. PurklMoD 1. SIS V
^H^ Hink* r. ItcoMi ii. 1S3
*. Bobifuoa H. nnt B
^^^^L Sinnal r DateDport li 'il. M!t
V. Rockafollow H. AM ^fl
^^^H e<i«iK'n>«
r. Ktu il. ttl ^H
^^^^1 StalMck ■>. Ciuhman ii. lll.flTl
e. Nowaric U. 703 ^^1
^^^^B ftiaii||l)Ur *. CamaioawMhh il. tM
p. Ht. Lmiii C011BI7 Own 1. VA ^^H
^^^m Ha««l)UTHoBwCtMill.2i,«0,I>Tl,roi
r; Sinnona IL 601. 6tt ^^H
^^^1 8M|iki r. Xiuw a. ai8
r. SnlodM li. SGS ^^M
^^^B 8)«cw>n •>. KUjIiwiy U. OSS
r. Siaten L 330; ii 319, flOS ^H
^^^1 Sniili r. AUbuna 4
V Sunmona 3- 690 ^^^|
^^^m •. Mclrar il. .V-»
c. ThouM* ii. 007 ^^H
^^^1 •. HarTlaad ii 3% lUl
p. TMubcckbM Bank li 38* ^^H
^^^1 t- Mono U. 2S0
p. Union li. 70( ^^H
^^^H •tOIUor
p. Walkini a. 708 ^H
^^^H K raduid IL 261
p. WUioa II. 831 ^H
^^^H K Shaw
Suto Bulk r. Knaan IL 676 ^^M
Swie Frn^l Tax Cim ii. IB ^^1
^^^1 ». Sion
^^H n SMrcr 670
Stale Tax uii Fonifn B«nda ). 7GS ^^1
^^^^T K Taroer ti. 40
Stale Tunna^ Tax Ca«M L 7.18 ^^1
^B «i United SutM ii. 308
StoMiboM Co r. Lirlnguon li- 17 V
^H Sotllll. /:r ;w/M U. 688
SiMUBiblp Co. p. Purtvardme il. S3 ■
V. Wwdcn. L tU. 7W ^^
^^^^L SmwIuII a. SnnwfaUl ii. TOS
^^B SodMr. &«■ ■'. WhMkr M. UO. 676, Wi
Stepbena «. UiJInnd Rf. Co. 1. 088 ^^1
^^^^ 8od«t7 far PropasUbig the Owpet
Slephenaon r, Oiborno il. SU ^^^|
^^V p. tlen llaica ii. 199
Sliliiniu e. Cniwd SutM ii 9, 680 ^^M
^^ft^ Botnonct* ('j*v ii. £811, QIS
Stockdato r. ILmianl L SSI ^H
^^^^L Sooo Uing r Croirler L 739; ii. 'J3, 701
Stwkioi; p. Ham a 367 ^H
^^^H Somlanl •'. i^Riiih ii. OOO
Stmo n FkmMn' Loan Co. IL Sflft ^^H
^^^^H 60U1I1 AtatiaiM tt. Co. f- AbbaoM
a. MiMlaaippi IL 32 ^^H
^^^1
e. WiaMnna IL »» ^H
^^^H Sonth Carolina r. GMrgis b. IT
SttMilMr >. Weal Vinblht IL »\ ^H
^^K SwHiiBan t' Pnrwr 1. 0
Siranc r. $UI* II. Sll V
^H 8uiM >■ imiK.1* iLAna, B2I
$nun e. Ulni 1. 808. 81S, 401 M
^^^K Snoonrr >■. McCooimI] 1. SIS : 11. i\ STe
KinrsM •■- Carnr H. SI ^M
^^^B apncit* ', Wakrit* li. :t6:. 3&A
Snircl* r OrairnliMliMI 1. 3(6, «M. S8«^ ^H
^^^^^ epfl*spr r. FcMtcf 11. X, 21% &;6
3M. 33A, 338. .188. HI : il. 4«. 02, M, ^H
^H •. Unii*'] Sum i. 70S: ti. 600^671
228,243,347, 8aO;3aa,SW,348,U0. ^H
^^1 Spring Valley Watora-otk* r.
^m 8.4M>ltIer iL XMw 3S0
BiKlniwn p. Welch II. C ^^|
^H stv. Tiic ttriKiii ii- a
Snnuner p. Ilidw H. STB fl
^^^m^ SurlMck 1- Momr ii Itt
Sunbnrjr R. Co. e. Coopor il. ST ,^^1
^^^B StaU p. AdMw ii SID
Bvdant n. Btqadnax li. no, 303 ^^H
^^H >. Albfl i. Ui
p. WiBiaMiMn IL 676, 679. TOO ^H
^^H a SI
SwUlit To>«e7 1. Ill ■
^^^^1 r. Brania 1. tUl
*- T/ua II. B7« ■
^^^M w. Cbana
■
^^^H p. Cofwn U. 2ZI
^1
^^H •. CMrm 1. na
Talbol r. Benitaa II. OS. W. OOO ^^
^^H r. Cox U. Ui9
TuUe'i Cm* n. 638 ^H
^^^B >. IUtU 717
Tanilpjr *. Ranwv IL 367 ^H
Tar or 1^. Rirdea IL 180 ^^U
^^^H c. Foidklt ii S2
e.Monoa ILeoSkOU ^H
^^^ ZZXU CASES
^^^^^^^^^^^^^^H
^^V
v*&> _J
^ Tkjlv » Porttf ii 0U8
(J«iu4 Sutn r. Battiitt II fl, tM ^H
^H V. 8«euiw ii. £65
1- Bpaioa L 6M ^^|
■ IVbT. The Mmm U. tm. ill. 696
^H Teal K FeltoQ u. 488
1^ Bctuu ii. 131, 148. 4Ca, 472, JMk ^H
^1 Telcffnph Co r. TexM ii- 4. 12
». Biicht It ins ^B
n Buford IL no. 208 ■
^1 TeKair i*. Slcad i- 138
^K Tennuure r UavU E 140, £20
>^ Burr a »7», GM ■
^^^L 1^ PuUmui Car Co. ii. 13, 11>
r. Campbell a 637 ■
^^^B r. SiH«d ii. sua
V. Cima IL 14 ■
^^^ «. WhitworUi i. IVtO
r. CUrfca 11. 474 ^M
H Tenwlt p. Taylor 1. 26: a SU.SM. 2;f.
r. Cupwar IL SM ^^1
^H (Vu
<-. Coomb* ii. IT, 24. 472 ^H
^l Tenilorr r. Pyle ii. 2M
r. Canxll a 181 ■
^B Tetry r. Andvnoa IL 2£I. 306
V. CnikA*ak ii. 4«, 496^ 681 M
^1 Tvrry, £ij.<if(t il, UT
^1 ^XMr.Wblta LSM; U.lll.ll3,Gfe.
r^cntitt asm ^M
narii a 687 ^H
■ 671
c Duluth a 29; SS ^V
^B TluMkfr B. Ra«k ii. 717
r. KliMon a SCT ■
^^__ Tliamw. The B. 4a&
t'. Kiteiw a 213 M
^^K TKamn Iluik r. Lortll it. 20
r. Fiibar i. 33», 329, 881 i a 14), ^M
^^H Thatchsr v. Vnm «-!! U. 676^ 706
^^^ Thomp»r>n .% CuT ii. 2Ift
•'. FrcMiiaa a 3ST ^H
^^V p. .Mi>rgxn ii. 'ZJi
r. KriM a680-^B
^M V. VmiHr lUllrMd L m. 702
i'-Q«l« i. 803 ^H
^H V. Whilmaii iL IBS
p.Ollnior« L31S ^H
^M Tliom >'. Itlancliknl U. SW
n Gratiot a 900 ^H
^H Thonilvn u. Turner il. T0&
V. GrcailMiiM IL 680 ^^
H^ Thnrp« 1-. R, « H. R. R Co. U. aU. TOI
^^^^ Tliurlxir v. BlackixnutiD )i. ICQ
V- Grudi a OOt 472 1
c Guthri* L 200 ^J
^^^H Thurio* F. BlniaacliwetM Ii, 48
I'. lUmllioo U. UOt ODO ^H
^^^V Ttiunnin b StMo a 717
■'. iunw» iL seo ^H
^ 'Hianton «. Tliurtlon ii 706
liam* a 674 ^H
^H Tirnun r. Rinhcr 1. 70S: tL >6
r. fluhcll II. 680 ^H
^H Tomllniofi r. Jtunp it. X6S^ 200
r. lloar IL 278 ^H
^H TrannMHUtiofi Oo. ». PHktnbarg L 7>8
V. Holiitkr a a, 44 ^H
^H 'DmIc i>. Mkirain U. 168
r. Hoxie IL MO ^H
^H TraTBii e. VTocden i. >M. 800
nKudMH) LIIS'^H
^H Trntorl. /n n ii. 188
r.JonM B.56».60tt ^H
^H Tmnop* F. Tntmu i. SM : ii. S08
r. Kirkpiirick a SOa, 370. 381 ^H
^H Tfiuuwaot ViDwnnet Unlrortiij
T. Khln IL 338 ^M
^M V. IixliBU U. 260
t. IjincaMar L 112 ^^1
^H Tna D. CirTii>re Ii. Clt, &6
V. Lalhmp ii. 637 ^^|
^H TaclMr f . I'urxnt^n II. 2B8
f. U Baran U. 878. S70 ^H
^1 Timer p Mar; laud 1- T»l>. TW. 742
■>■ I.M a 474. 489 ^M
^K ». Sum 1. T4!i 1 il. 331
^^^ Tamfr, /■ r. 11. 67% 874. TSB
0. Llttla ii. 897 ^H
». HcLtnim U. 474 ^H
^^^B Tumnike Co. r. Auto U. Sfi6
^^^^ Turptn p. Barg*^ i. 7K
■>. Mangold a 08 ^H
e. Mandia iL 00 ^^M
^H TiritclwU r. CoaiiaaiiwMtth U. e&l
v.Mcmphit ll.atO ■
^M Two Prlendi. Tli« ii 470
e. Hnore IL 600 J
^M Tykrr r. Dcfmr* ii. M
*.Morrii as^OUO ^H
^H Tytoa V. School Direchm a 70S
n. HoCTiaon 11. 073 ^^|
^^1
»,Na»h (LtHS ^^
^^B
F. Nl>« Bodfonl Bridm L 112; It. IT 1
^H Un*TT '- Conminnoeallb IL 696
v. Naw Orlaani il 2(0 M
^M UodMwood r. L;:iy IL 704
e. Ortei[> i. 40S. 401. Eftlv 0V7 ^B
■ Unloa Bank r. UUl 1. 767
r.FalmBr a«84.38& ^H
■ r. RutB U 2T4
0. PrKRr.Tlw iL 000 ^H
B nnlon loo. Co. r. KM! i SIS
r^ Pom U. 600 ^^H
H Unloa Rv. Co. «. DriladetoUA a «T. 988
P. r««*ri «. 483, 402. 688 ^V
^m tlnitol SiaUa v. AmOoMO B- 408
B. llratoi fi. pg ■
^■^ <-. ttii;«y 11- **
p. Flantera' Bask of Otontia ii. 467, 1
^^K iLRalaaaf OoUoii,mi IL^OT
mm
^^■^ ■t.Barktr a 306
a. Railroad Btidge U. ly ■
OABBft OtttD.
xxxm
I 8Wm r. lUtam
B.It*Me
« BIwdM
e. ttihj
B. Smith
iLTlfl
li. OTS
It a, HO
H n, 80. Ml
«. -nag«r IL 148, ITU. 308
«. Totooco rwtorr U. 8S0. 01 1
K Dirioa I'MUk: K. Co. U. 401, t06
K ^IWo li. K
«. WaddeP ii. T16
■L Wbi>k*jr, 43 gkUoni of U. COS
». Williun, TIio 1. TS7 ; ii. 171
*. Vniim Pom. The IL 23
«. WUmr riU; II.MS. 378, 472.
». WntbMfer U.
V. Woiuon U. 67&
UnirtnitT of Vlnioi* v. for U. 248
u.m >. ium il «3
VadtiA *■ Ia«m U. 168
LTu All«ci r. AjMMm L 767 ; U. 2
BokalM * Drooltlvn Cltr
R R. Co U. 67G
Fan Cmd|i r. Board of Bduntioa tL 717
ITuMe p. Vane* li. SSe
iTanidrrbilt a. Adnna ii. 701
ITanlcrhejrODD <-. Yauns ii 121. 122
Vaiulen-iarit i-. StnJtb li. lt<I
Van UolToan r <iaiairr ». 3M. 267
Vaa Kura r- Dofraooe ii- 670
Van Mew «. I^wkanl i. 110, 111
Tan Renaaolaer ■>. Eoantejr ii. 6T6
• Snyder liUT
Tan VliM. /k n U. £
^uauii ■■■ waddca a. mt
^«ula «. UooT IL 10. St, W
raaila Baak «. Fwhw i 701. 764. 767 ;
U. 37. m
Ta«tMiiM. U li. 400
VIekabMK ». Tobin 1. 7SS
Vbsliii* «- tUica il. t»i
V. TTtM Vir^ia ti. 377, 278, 460, 60O
1rfiala.£ruirfa ILOSl
_ livlnUCIaaM «. lU?
TtrRinia CoujMia C*Mt U. Stt
T1t«uIi .-. ItKkvr II. a»4. 4dB
VolDBWtr, -nia IL 40O
tWilMub * Erie Canal c B««n ii. 366
rabaali R. Ca •. Dikiala il. 4
Falkar n f%nH*rlrartU ii. ^1
BL SaavlMt il. est
n milrcbcad II. 249. SM. 267
r. Wfaittier li. 187
Wall, Ki/nn, IL671
hWatlac* •>. UeCOMwn tL S88v 689
nraOlBt ■>. Hichlni li.4,IS.I&
ralIrS lUra r. KMiiMdr IL S92
WalMon r. Contmonwaalth II 231
V. HcTln a 6M. 061
Ward r. Marjland L TSS ; iL U, fM. esi.
738,780
roL. I. — e
Ward c Praeior 11. M
«. Su[« IL 6M
Wan •>. llrlion i. 168. 187, M4. SCO, 3H.
S3S,»7. 868: d. M», 4198, 670. 0Q6, MS
Warloc I-. Ctark
c Jackion
r. Tbo Mayor
Wartwr b. Fvojila
Wamn B. HcCanhr
•.PmI
Warren Manvf. Co.
Co.
Warwicic, The Amy
Waahlnini, In rt
U. 460, 473, «3»
U.67S
1.760
1. 904; ii.S6e,aos
1L103
t767
r. Jia» In*.
a. 101. 683
ii. w
ii.68T
Waaliinglaa CmtMvl^ b. Bo«w
iL26»
Waaon «. Walter L 031
Watkiiu p. Huliuan't Ltawo il. 704
WatMui e. Mercer ii. £». 321. 3M, 373,
704
p. K«i> York C«nml R R. Co.
11.967
Warmaa e Soothard il. 688, 6M
W«arcr r. Uptley iL 111. C7I
Webber r. Virginia U.701
Week! P. IbtiiwaukM i. 303
Wetoh p. Wadaworth iL 706
WeUi. £rn<irftf 11.07
Wellon r. Sliraniri i. 7aS ; IL 12. IS. S»
Weatorn Union T«L Co. b. Findlatoii iL 4
p. Texaa ii. 4
Waiieprell r. Gresg li. ON, 70O
Wpitetwclt IV I.OWU li, 193
We>;on V CHatioion IL 3. 630, 640, ni3
It, City Covnca of Charialoit I. 767
Wwt Kirer Briiln Co- p. Dlx 1. 312 :
ILa»
Wh«alon 1^ Fctm L1M.683
WhMliDR Traiupartetian Co. e.
WhMlioB 1. TS8
Wkllop. iGvt U. 247, 2». 274,603,070.
710
WMte'» Bank e. Smith IL 23
WhitebrMd r. Rtgim U. «7
Wicfc r. Tbo Samuel Stnof IL 676
Wigciii e. UMMd Sum* I). 670
WHoox B. JaokMD K. «», 676
V, Rodman IL 3K
wnkM'i CaM> L ON
Wllki<i*on e. LeUud il. SIS, 37*. 274. 000.
706
p. Utah iLeao
WiUiam. The li. 8
Wiiliaoii V. Brnfly 0. 940
r. HaiDM ii.26T
p. Kirkland 11. 676
p. feylon H. 708
P, Wiekeman IL96
WlUlamuin ■'. Su/dam IL 706
e. WlUlarawn IL 706
WnmtnflMi It. C». > Bfeif H. 246, 944
r. RcM U. S47, 2BB
WHaon V. BladiUtd Creek Marmh
Co. it 16, 23
XXXIT
CASH
CITED.
»»^
ff
WUwn v. Brown
iL3U
WoroMtM >. QaorfiB
1108,101; iL0,
43
B. Mwon
ii&38
D. McMbidm
■L14
0. Norwich B. Co.
iL869
WjllOD, Ex putt
iLfioa,ee4
Wwk D. Eute
ILUO
WUmh, Tb*
iL2«
Work* «. JonctioD B. B. Co. ii. 19
Winter v. Jones
11263
iLl92
Wiacmrt F-Dmncbr ii.
GOl, 608, 640i 660
a. Deacon
aesQ
WiBcomio v. Duloth
iL le, 17, 21
F. Defree*
ii. 37
Wiie B. Witbels
U.4M
WnttiD. Hoagland
iL681
Willier* B. Buckley
ii.26,e69
Wf nahamer v. Peofde
isae:ii.eM,7os
Wout >. WinDick
u.a3i
Wood D. WatkiuoQ
ii. 192, IM
Wood li nil F. Wagtier
iL6«,an
iL716
Woodmui D. KUbouni
Mannt Co.
LK3
iLlfl
TiMoQii. Frj
iLlST
Woodrufl e. Parham
L 786, 749 1 ii. 15.
Terger, Ex paiu
L290
2X686
ii.68l
v.TnpiuU
iL 286, 963
Toik p. TexM
ii.6n
CONSTITUTION
THE UNITED STATES OF AMERICA.
Wb, the people of the United States, in order to form a more
perfect union, eatabliBh Juetice, insure domestic tranquillity, provide
for the common defence, promote the general welfare, and secure the
blessingB of liberty to onrBelves and our posterity, do ordain and
establish this Constitution for the United States of America.
ABTICLE I.
Sectioit 1.
1. All legislative powers herein granted shall be vested in a Con-
gress of the United States, which shall consist of a Senate and House
of Representatives.
Skctioh 2.
1. The House of Representatives shall be composed of members
chosen every second year by the people of the several States, and the
electors io each State shall have the qnaliflcatione requisite for electors
of the most numerous branch of the State legislature.
2. No person shall be a representative who shall not have attained
to the age of twenty-flve years, and been seven years a citizen of the
United States, and who shall not, when elected, be an inhabitant of
that State in which he shall be chosen.
3. Representatives and direct taxes shall be apportioned among the
several. States which may be included within this Union, according to
their respective numbers, which shall be determined by adding to the
whole number of free persons, including those boand to service for
• t«rm of years, and excluding Indians not taxed, three fifths of all
ZZXIT
OASES
OITBD.
P»*
F>W
WUm)d d. Brown
V. Huoo
U.3G8
ii. 63S
WoroMtar V. 0«orglB
tUMOTi U.4^
V. McMUDM
iLM
e. Norwich B. Co.
Ii. 260
Wilson, £x parU
ii. e6a,e6i
Work i>. State
0.660
WUtoD, Tbe
ii.24
Work! V. JunctloD B. B. Co. a 10
WlnUr V, Jonei
iL263
Wrifht D. Andrew!
U.1B2
Wiicart cDsnchj'
li. GOt, 603, 640, 666
H. Deacon
a689
WlKOMin V. Dtilnth
il. 16, 17, 31
a. DefresB
ii. S7
Wlra D. Wither!
ii.«M
WattM a. Hoaglsnd
IL681
WiUien D. Bockley
U. 26, 669
Wf nohamer o. People
LSS6; 11604, 702
Wout ■. Winnlck
U.a31
Wood V. WftOcinian
ii. 102, IM
Woodhull c. Wftgner
A.6a,xa
Ttfboroagh, Ex port*
il.718
WoodmaD v. lUbourn Uanuf. Co.
Tate* K. Luuinf
1.623
il. IS
YeatoD B, Fry
ii. 187
Woodrufl V. Farbam
i. 786. 749 ; ii. 16,
XtTger, Ex parte
L290
2^686
Tick Wo D. Hopkioi
11.681
v.Tnpnall
iL 386^ SUB
Tock e. Teu!
iL671
CONSTITUTION
or
THE UNITED STATES OF AMERICA.
Ve, th« people of tbe United SUU^r, In order to form k mora
perfect iintoD, csUMinh juKtioo, inKtirc doinntic Iranqaillity, provide
for tbe common dcfenoe, promote the general welfare, and secare tbe
bleaungB of liberty to oonelTes and oar posterity, do ord&in and
osUUisb this Constitution for tlie United States of America-
ABnCLE I.
SEcnox I.
1. AH l*st«tntlTe powers iMreiu granted «hall be vested In n Con-
greM of the United States, vrhicb shall coDHist of a Senate and House
of RepresentativeB.
Sectios 2.
1. Tba FIouM! of RepreKcntatirc« tdiail lie cooposcd of memlwrs
cbosen every Kccon<l year by tlic people of tbe Hcrcrnl States, and the
electors in each State shall bare the qualiReationK reqoisite for oleclors
of the most DomcnMis branch of the State legistnliirc.
i. No person shall be a representative who shall not have attained
to the age of twenty-fire years, and been seven years a dtuen of the
United Slates, and who shall not, when elected, be on lubahitout of
that State in which be shall be dtoaen.
S. RoprviWDta tires and direct taxea shall be apportioned amoni; tbe
Screra) Stnlca which may lie included wttbin ihht Union, according to
their respecUve nonihcre, whi<'h shall l)C dcteminml by adding to tlie
whole oannber of free persons, indiiding those boniMl to service for
a term of years, and excluding Indians not taxed, three fifths of all
XXXTl
THEi coNsnnrtioH.
other p«r»0Ds. Tbc iu;tiiitl eoumentioo bI»I1 be made vjUtin Umo
yean afUr tlic flrxt mvvting of tbu Congrcvs of tbc L'iiit«d Sutcs, ukI
within every Htibacqitetit U-rni or ten J9*n, in eucli maDDc^r aa ibeym
eliall by Uw direct. Tliu Dumber or repros«ntativoe tfh&ll not esceed'
one for every thirty thousaud, but each State ehall bare at lesat oae
representative ; and, uutil euch enumeration ehall be made, tlie State
of New tiampsliire shall be entiUed to cbooae three, Maaaachuaette
eight, Rhode lalaud and Providence Plantations one, Coanecticnt fire,
Nrw York nix, N«w Jeraey four, Pennaylvaoia eight, Delaware ono,j
Muryluad his, Vir}i;inia ten, North Carolina five, South Caroltoa fiv«f-^
and Georgia thre«.
4. When vacand«« happen in the repreaentattOD from any State,
the executive authority thereof shall isane writs of election to fill such
vacandc*.
&. The Homo of KrprcMntativea shall choose Ihelr speaker and
other offloers, awl ehall liave the sole power of impeachueak
Sbctiox S.
1. The S«nat« of the UDfted Stales ehall be composed of two
senators from each State, cboseo by the le^isUture tbervof, for six
years ; and each Beoator shall have one rote.
i. Immediately after they shall be sssemMed. bi conseqaeDcc of the ,
Brst elecUon, they Bball b« divided as eqcaUy as may be into
rlansw The seats of Uh ssnatocs of the lint class shaU be ri
at the expiration of the wcood year, of the seeoml cUss at the i
ratioa of the fourth year, and of the third class at the expiration ol
Um sixth year, so that one third naj be choaeo every second year p
tad if vacancies happen, by rengaatioii a* otherwiae, dorit^ tbc
recess of tbo U^rislature of any State, the cxaoittm thereof may naki
Hn^MHary appointments, until the next tiwiKfwg of the legialatiii*,^
vkkh shall thM) Sll BQi^ Taeanedes.
3. No person shall be a senator who sball not have ftitnti to
age of tluity jeaia, aad been nine years a dlJuB of the United St
snd who shall not, wtten elected, be aa iahafaitaat of that State for
wUdi In shaD ba cfaeaea.
4. Tbe TIee-PrsfidMit of tbe United States sfaail bt prsaident of t
Senate, bat shall hate no vote iintwss tbay bt equally divided.
A. Tbe Senate shall choose tbctr othsr oOctiT, and also a j
pra Mnpsra* » t^ alwsoca U tba Tins Pwaitkot. or wfam be
sx«fd>« the ollka of Fiwidciil of tbe Uaiisd Statca.
5. Tba Scaat* Aall hav* the sols powar to try all
Whea sttiag foe that pwpoea. thsy shall b« oa oath or
THE coNsmu-nos.
XXX TU
'When tbe Pneident of ihe United .States Is tried, the chtef Jostk*
thall [ircxidc ; and no pL-nkon dhal) be convicted uritbout the conoor-
reoce of tiro tliinU of itie iDctDlnrni i>n«ei>t.
I. Judgment in ca»«« of im|>cachmciit »Iui)l not ext«n<l rurther Hum
to remoT&l from ofBoe, and diaqunlificittion to lioUl ntiil cnjojr tay
office of honor, trust, or profit, under the L'nitc<l st.tt<.>9i; hal_tlie
partjr conricted shall neverthelesa be liable and subject to indictment,
trial, Judgment, and punishment, according to law.
Sxcnox 4.
1. Tbe times, plaoce, and manner of bolding elections for stDator*
aiMl repn'Sfiilativos mIiuII tje prescribed in eadi State by tbe IcgislalDre
thereof ; but the Congnwi* ninj at any time, by law, make or alter such
[ r^ulations, except w to tbe place* of choosing senators.
2. The CoDgT^Hs shall otuemblc at leant oum Id every year, and
mcb meeting shall be on the first Monday io December, uulesa they
; Bkall by law appoint a different day.
Sscnosi 5.
1. Each house Bhall be the Judge of tbe elections, retams, and
qnaliflcatiODS of its own members, aod a majority of each shall con-
'Btitute a quorum to do business ; but a smaller number may sdjuurn
from day to day, and may be authorized to compel the att4>iKlance of
abaent mcmlwrs. in sucli manner, and onder such penaltie*, as each
bouse may provide.
2. Each house may determine the rales of its proceedings, punish
its members for disorderly behavior, and, with the concouenoeof.two
thirds, expel a member.
3. Each house shall keep a Journal of Its proceedings, and from
time to time publish Uic same, cxcrplin); such parts aa may, in tfaeir
Jtulgment, retjulre secrecy ; and tbe yeas and nays of (be members of
cUber house on any iiaestioa oball, at the desire of one flflh of thoee
' pnMDt, be entered on Uie Journal.
4. Neither Iiouse, during tbe sessioo of Congress, shall, without tbe
OOB^nt of the other, sdjoom for more than three days, nor to any
f Atbtr place thsn tbat In which tbe two bouses shall be sittiqg.
Swrnojt 6.
1. The scnatora and representatives shall receive a compensation
for their serriecs, to be ascertained by law, and pud oat of the treas-
ory of the United States. They shall, Jn all cases, except treason,
felony, snd breach of the peace, be privileged from arrest during tbeir
XXXTUI
TBB COKSrmmOK.
kttondaiMe ftt tbe naaioo of tbdr tespective bouaeft, uid la going to
uid returning rrom the sam« ; aod for aujr speiedi or debate in eitbcr
bouse tbey aiuiU Dot be quealioned id auir olhei- ylact.
2. No senator or KpreMQlative sliall, during lliu tints for wbkh be
wtM elected, be ap|M>iut«l to xiiy civil ollk-c uodur Ibe authohl; of tbe
l)iiitc<l St«l«H, wliivb xhrnll bare been created, or the emolum«DtaJ
wbcrt-of itliall have bi-vn increased during aucb time ; and iio person
botdiog an; office under the United HtMee elull be a member of eitbes]
booM during his continuance in otOce.
Sscnoic 7.
1. All bills for raining rercnuc shall originate in the House of
Kepr«8entativ«e ; but the Senate ma; propose or ooncnr trith amcnd-
■Kuts, as OD other bills.
2. Every bill nliicb aliall bare passed the House of Repiesentadves
and the 8«nale slmll, before it become a taw, be presented to the
President of the L'nitod States ; if b<- approve be shall s^ it, but If
not be eball return it, with bt* oliJ<>ctioits, U> tliut hmieic in nbich it
shall have originated, who shall enter the objectionH at lai^c on tbeii
Jotimal, and proceed to reconsider it. If, aflcr such reconsideration,
two thirds of that house shall agree to pMn the (nil, it shall bo sent,
together with the ob}eotH>DS, to the oth«r house, by which it shall like-i
wise be rcconitidered, and, If approved bj two thirds of that bouse, ilj
shall become a law. But in aH such cases the votes of both boas
shall be dctcmintd b; yeas and nays, and the names of the penoDlj
voting for and against the bill shall be entered on the Journal of eachi
house respectively. If any bill shall not be retumnl by the Pmideut
within ten days (Sundays exccptctl), after it shall bare t>ecii presented
to bim, tbe same kIibII be a law, in like niunoer as if be hod signed it,
onleea tbe Congress, by their adjonranient, prevent its return, in wtuchj
case it shall not be a law.
8. Krery order, resolution, or role, to which the concnrrence of tlw
Senate and noiisc of KepresenUtirce may be n«cessary (except on a
question of adjournment), shall be {»«seitted to the President of ths
United States ; and, before the sane ahall take effect, shall be ap-
proved by bim. or, being disapproved by him, shall be repassed
two tfainls of tbe Senate and Honse of Representatires, aecordliig Ml
the rules and limlutious prescribed in the case of a hull.
Sectiox 8.
The Congress shall have power, —
I. To lay and collect taxes, duties, imposts, and exriaes, to pay the
debts and provide for tbe common defence and general welfare of the
ran CONtmtDTlOK.
xxxtx
Unhed Sut«fl ; bat all <latieK, im{>o«u, and cxcdnt Bhal) be onifMin
tltrODgbont ttMi United States :
it. To bonow raoucy od the credit of tbe United Stat«e :
8. To r«gnl&te commerce wiUi (oreign natioue, and among U»e
eereral States, ami with the Indian tribes :
i. To establish an uoifonn rule of natuialUatioo, »ii<l uniform lawn
OB the eultject of baokniptciea, ihroo^hout the United htiit«K :
&. To coin money, regulate the vidue thereof, and of foreign coin,
and Bx lh« Mandaid of weigliU and meiuiurea :
6. To provide for the punisbnwnt of oountttrfeituig the securities
and ciirreDt coin of the United 8taUw:
7. To establish (wst-offlces and post-road* :
8. To piomote the piogr«e8 of science and twefol arts, by securing,
ioT limited l)uic;i, to authors an<l Inventors the exoiuaive right to their
respective vritiiifCM and dtncoverieai
6. To comiliUitc trilninaU inferior to the Supreme Court :
10. To deflne and punii-h piracies and folonicK committed OQ the
high Mas, BDd offences a^aioBt the law of nations i
11. To declare war, grant letters of marque aod reprisal, and make
rale« concerniDg ca|>tures on land and water :
12. To ratiie and support arrolea, but no appropriattoo of money to
tlist mat shall be for a longer term than two yean ;
13. To provide and maintaiD a navy :
14. To make rules for the government and regulatioD of the land
and naval forces :
15. To provide for calling forth tbe mililla to execute the law* of
tbe Union, aiippreMa iiwurrections, and repel uivasiona :
16. To provide for or^aniKtng, arming, and diiK-iplining th« militia,
mud for governing such part of tbt-m as may be employed ia the ser-
of the fnltod States, reeenring to the States respectively the
[sppoinlment of the olHcers, and th« aatborlty of traming tbe militia
* according to lh« discipline presolbed by Congress:
17. To exercise exclusive leglslatioo in all caaea whatsoever, over
^nufa distrin (not exceeding ten mtlrit M|u:tre), a» may, by cession of
ticular states, luiil llic acceptance of Congress, become the seat of
the government of the Unit^ States, and to exerciiw like authority
over all places purchased by the consent of tbe legislature of the State
in which the same shall be, for the erection of forts, magazines, arse-
nals, docfc-yaids, and other needful buildingB: — And
18. To make all laws which shall be oeceasary and proper for
tarrying into execnlioo the foregoing powers, and all other powers
Teflteil by this Constitution in the government of the United Stale*, or
in any department or officer thereof.
THE C0N8T1TUTI0K.
Sectiox 9.
1. The migratlOD or iinporUtlon of siieh pcmoM m any of the
I States now existing sball think propnr to ailinit khtiU not bv |>roIubite(t
bj the CongreBa t>rior to the juar oim! tlwiutincl eight bniulred and
eigkt, iMit a tjuc or duly may be impoMd on aacfa importation, not
exceeding l^n dollan tor i-acli jM-raon.
i. Tliv iirivilc^i' of thif writ of habta* corpta shall Dot be anspendedt
onlow wbcD in canca of rebellion or inraeioD the public safe^ may
rvqiiirc it.
3. No bill of attainder or ex poM facto taw shall be paused.
4. No capitation, or other direct tax alioll be laid, itnlera in propor*
tlou to the oeiMtM, or enameratlon hereinbefore directed to be taken.
6. No tux or duty shall be bii<l oo article* export^ from any State.
No preference aliall be givt^n, by any rEgulatioo of commerce or rave*
nue, to the |>oTtn of one 8tatc over those of another ; nor shall veasela
bound to or from one State be obliged to enter, clear, or pay dudea in
another.
6. No money shall be drawn from the treanuryi but In conftequcoce
of appropriations mode by law ; and a regular iitstenieul aiid account
of the recelpu and ex{>eDdilure» of all public money shall be ]>ublished
from time to time.
7. No title of Dolnlity shall be granted by the United States : Aad
no person holding any office of pty>flt or trust under tbem shall, wtthoat
the consent of the Congress, accept of any present, emolumeut, office,
or title of any kind whatever, from any king, prince, or foreign state.
^Ecnox 10.
1. No State ehall enter into any treaty, allianee, or confederation ;
grant letters of marque and repriHal ; coin money ; emit bills of credit ;
make anytbiog but gold and silver coin a tender in payment of debts ;
pase any bill of attainder, expostfario law, or law impairing the obli-
gation of contjttctjt, or grant any title of nobility.
2. No Slate sh.ill, witbout the consent of the Congress, lay any Im-
posts or duties on imjmrts or exports, except what may be absolul^y
necessary for executing its inupcctioii laws ; and the net produce of oil
dotics and )nii>oKta, laid by any State on imports or exputtA, alioll be
for the use of the treasury of the Unitod States ; and all suoh laws
•hall be subject to the revision luid control of the Congrtss. No State
shall, without the ooDsent of Congress, lay any duty of tonnage, keep
trootM, or «liips of war, In time of peace, enter into any agre«m€Dt or
coiD|)«ct with another State, or with a foreign power, or engage in
war, lUtlesK actaally invaded, or in such imminent danger as will not
admit of delay.
THK OONSTmrnON.
zU
■
ARTICLE n.
Sscnox 1.
1. The esecnliTe power ehall be vested in a Praeident of tbe United
8tAt«ti of Auii-rtcx. He shall hold his oillce during tbe term of four
yitm, and, tu^vtker wltli the Vke>Prei>idejit, clioMn for tbe wuii«
Una, be elvrtod lUt fi^tlowtt : —
2. Each State sludl a{>i>oiDt, in siicb manner aa Uk kgiaUture
thereof ma; direct, a nomber of electors equal to Uie whole number
of Bcnatora and repreoentalives to nbicfa tbe State ma; be entitled in
tli« CongrcM ; bat no wnntor or representative, or iier^on holding an
onice of tjusl or proflt under Uiu United States, shall bo aptiointed an
elector.
3. The electors shall meet in their mpectire State«, and rote by
ballot for two persona, of whom one at least shall not be an inhabitant
of the same State with themselves. And they shall make a list of all
the persons voted for, and of the number of votes for each ; which
li»t tliey xhnll hj^d and certify, and tnin.initt, at'iiled, to tbe test of
the govcriinierii uf tlic Unitvd 8tat4», <liix-ctvd to the pmident of
the Senate. The prcttdeot of the Senate nhall, in the presence of the
Senate and tlonw of BcpreseDtativeB, open all tbe certiflcatea, and
the voles sliall then be counted. Tbe person having tli« greatest num-
ber of vote* itball be the Preaidcnt, if mich number be a majority of
the wliolc numWr of electors ap|>otnted ; and if there be more than
one who hare such ninjority, and have an equal number of votes, tlieo
the House of licpreseotatives shall immediately choose by ballot one of
them for President ; and if no person have a majority, then, from the
five bigheat on tlie list Ibc said House shall in like manner elioose tbe
Pnsideut. Bill in choosing the Prcsklmt the votea shall be taken by
States, Uie reprcwntation from each State having one Totc ; a qooram
for this paq>ose shall consist of a member or members from two thirds
of the Stat4-M, and a majority of all the States shall he necessary to a
choice. In every case, after the choice of the President, the person
baring tbe greatest number of votes of tbe electore shall be tbe Vice-
President. But if there should remain two or more wl>o have equal
rotes, the Senate shall oboose from them by ballot the Vice-President.
4. Tbe Congre»a may determine the time of chooaing Uw cI*cloni,
and tbe Oay on which Ui«y shall give their rotes ; which day shall be
the same tlirougliout Uk United Sutea.
&. No pvTvon cxc«-i>l n nntural-ix>m citizen, or a citizen of the
United Statn at the time of the adoption of Ibis Constitution, shall be
•ligiblo to the office of riesiJenl ; neither shall any person be eligible
IHB CONSTITDTIOK.
Sbchok 9.
1. Tbe migration or iroponation of each persons u uijr of the
SUtes DOW existiog ehali UUnk proper to admit aliall ool be prohibitMl
by tbe Congress prior to the jrear ooe tbouuuKl vi|{tit hnn<lrM] wkI
eight, but a tax or duty may be impoaed on audi im]>orl>tioQ, not
exraediiig ten dollaro for eai-h penon.
i. Tbr privilege of Uie yiril of hufn^a* corpvu shall not be suspended,
JcHH wlien In cmm of rclwtlion or invuion the public safety may
|uin.' it,
A. N'o bill of attainder or txpoMfaeto law shall be passed.
4. No capitation, or other direct tax shall be laid, unless in propor-
tioD to the cenaug, or enameratton hereinbefore directed lo l>c tuken.
5. No tax or duty shall Iw laid oo articles exported from any State.
Mo preference shall be given, by any rogntation of commerce or rero*
Due, to tiie ]>orta of one iitHtc over tbone of another ; nor shall rcsstla '
bound to or fraia one iitate be obliged to ent«r, clear, or pay duties is ,
another.
6. No money shall be drawn from the treasury, but In consequeoc*
of appropriations made by law ; and a regular Hlalement and acoonnt
of the receipts and ex]>eiidltnrea of all public money aliall be publi«be(t
from time to time.
7. No title of nobility shall be granted by the United States: And
DO person holding any office of profit or trust nnder them shall, without
the consent ot tbe Congress, accept of auy present, emolument, office,
or title of any kind whatever, from any king, priuee, or foreign steM.
Srctios 10.
1. No State shall enter into any treaty, aIUan(«, or confederation ;
grant letters of marque and reprixal ; coin money ; emit bills of credit ;
make anything but gold and silver coin a tender in payment of debts ;
pass any bill of attainder, ex pout facto law, or law Imp^ring tfae obU>
gallon of cntitmcui, or grant auy title of nobility.
2. No State ithnll, without the conseal of the Congress, lay any im-
posts or duties on imports or exports, except what may be absolutely
aeoeeeaiy (or exoenting its inspection laws ; and the net produce of all
duties and imports, laid by any State on imports or exports, shall be
(or the use of the treasury of the United States ; and all such laws
•hall be subject to the revision and control of the Congress. No State
slinll, without the consent of Coiigresa, lay any duty of tonnage, keep
troojui, or ships of war. In time of peace, enter into any agreement or
compact with another State, or with a foreign ]>ower, or engage in
war, udImw actually Invaded, or in such Imminent danger as will not
admit of delay.
THE OOKSmtmOM.
xli
ABTICLE n.
Szcnox 1.
1. The esecutive power ehall be ve»l«l in a Ptwtidcnt of the United
States of Amvrivu. He shall hold liU ollk-u during the l«mi of four
yv*n, and, togctlwr with the Vice-l*nsideiit, choeea for the sune
tcnn, be elected m follows: —
2. Eaefa Stata ebaiX appoiDt, in eucb roaaner as the legislature
theteof msy direct, a number of electors equal lo Uie wh(de Dainber
of scRstore and reprc«cntativc« to wliieh tlie SUite amy he entitled in
the CongrcM ; but no senator or rcprcscDtntivc, or ponton lioUIing an
office of trust or profit under the United t>tatcti, ohall be appointed an
elector.
S. The electors shall meet in their respective States, and rote by
ballot for two ])«rM>ns, of whom one at leaat fltioll not be on Inhabitant
of the same SlaU: with thcniMlvai. And Itiey shall make a list of all
the persons rotod for, and of tiic number of votes for each ; which
list the; shall vi^n and certify, anfl trnnumtt, Healed, to the vcat of
the govemment of the United States, direct«d to the president of
the Senate. Tlie president of the Senate sliall, in tbe presence of tlw
Senate and House of Representatives, open all Uie certificates, and
the votes shall then be oounletl. The penum hanng the greatest num-
ber of totes sliall be tliv IVesident, If such number be a majority of
the whole number of eleetore appointed ; and if there l>e more than
one who have such majority, and bave an equal nuinbcr of votes, then
the lIouKe of Representatives shall immediately choose by 1>allot one of
them for l*ie»ident ; ■»<! if no |>erHon tiave a majority, then, from tlto
five highest on the list the sai^l House tshall in like manner choose tbe
Presideot. But in choosing the i'resident the votes shall be taken by
States, the representation from each State having one vote ; a qnorom
for this purpose shall consist of a member or members from two thirds
of the States, and a majority of all tbe States shall be necessary to a
choice. In every case, after the choice of tiie President, the person
having the greatest number of votes of tl>e elccton shall be the Vice-
President. But if there should remain two or more wlio have equal
rotes, the Senate shall cl»ooite from them by ballot the \'ice-l'rewdunl.
4. The CungrvMS may detertaine the time of choosing Die electors,
and the day on which they shall give their votes ; which day shall be
the same throoglmut tlie United States.
5. No person except a naturaI-I>om citizen, or a ei'ti/en of the
United States at tbe lime of the adoption of Ibis Constitution, shall he
eligible to the ofHce of President ; neitlier shall any person be eligible
zlii
THE COA'STmrnON.
to Uiat offic« wbo eIibII oot bare atUuDed to the age of UUrty-flre ;eftra.
and been fourteen years a resident wilbls tiie Unlt«d States.
6. Id case of the removal of the President from ofllcc, or of bi«
deatb, rcai^atJon, or Inability to discharge tfae powers and <lutic« of
the aaid otllce, the same abuli devolre on the Vice-Prc«i(l«nt, and the
Coi^TCsa may by lav provide for tii« case of removal, death, reeigDa-
tioD, or inability, t>otli of the I^rcmidvut and Vicc-Pr«sideot, declaring
what offloer ohall then act as I'rcsidcnt, and such oHIcer shall set
according);, tiotil the disability be removed, or a President shall be
elected.
7. The Prwiident sliall, at hui«I times, receive for his sen-ice* a
compensation, which nitail neitticr be incnrascd nor diminished during
the period for which hi- shall hare been elected, and he shall not re-
ceive within that period any other emolument from the United Stales
or any of them.
6. Before be enter on tlic execution of his oflSce, he shall take the
followiDg oalh or alllrmation ;
9. *' I do iwlcmuly swear (or afflrm), that I will faithfully execute
the office of l*re6idflnt of the United States, and will, to tlic tic«t of my
abili^, preserve, protect, and defend the CoostitutioD of the United
States."
Skctiok S.
1. The President shall be commaoder-io -chief of the army and navy
of the United Slat<!H, and of the militia of the several States, wbeo
called into the actual service of the United States ; be may retgulre the
opinion. In writing, of Uic jiriniripal oflker in each of the executive de-
partments, njwn any mi hjed relating to the duties of their respecftlre
oMoes, and be sliall have po^r to grant reprieves and pardons for
oOeocee against the United States, cxcei)! In eases of tRipcachment.
2. He shall have power, by and wiili tlic advice and consent of tlic
Senat«f to make treaties, provided two thirds of the senators preseot
concur ; and he shall Dominate, and by and with tlie lulvice awl oon-
KSl of the Senate shall appoint aiobasMdore, other public mmistera
and cousuU, judges of the Supreme Court, and all other oRlcera of the
United States, whose apjwintmeota are not herein otherwise provided
for, and which ahall be established by law ; but the Congress may by
law vest the appointment of such inferior olScera as they think propvr
in the President alone, in the cotirla of law, or in the heads of de-
partmeato.
3. The President shall have power to fill np aU vacancies that may
happen dniing tlM receoa of the Senate, by granting ootiimiasioiDtt
wUch shall expire at the end of their next seakn.
IHB CONSfHTDTlOK.
zUU
SBonoii 8.
I. He shall from time to time give to the CongrcM iofonsfttion of
the aut« uf the t'aion, tutd ri-commeDd to their ooiuidentUoa such
nviuturvM lu h« sliall Jti<lge ueceseary and expedient : ho may, on ex-
traoidioitry ovnwiouit, couveue boUi houses, or either of tbem, and in
case of disagrocmcnl l>t;Iwu«a tbem vriUi resiiect to the time of ad-
JournmeDt, he may ad}DurD Ui«in to »»i;h time lut be xluill Uiiiilc [iru^r i
he ahall receire ambassadors and oUivr public PiinbUr* ; be Khali take
care thai Uie laws be faithfully executed, and tdiall commiasioD all the
Officers of the United States.
SeChoit 4.
1. The President, Vice-President, and all dvll ofBcers of the United
Statea vhall be removed from office on impeachment for, and oonviclioa
ot, trea»OD, bribery, or other high Crimea aud miadcmeaaorH.
ARTICLE in.
StXTTlOX 1.
1. Tbe Judicial power of the United States aliall be rotted in one
Sapntne Court, and In such ioferlof cotuto as tbo CoogrMW may from
tboe to time ordftiu and estaUish. The Judge*, botb of tbe wprenia
and inferior courla, ahall hold their ollicca during good behavior, and
riiall. at (it«t<,>d tin>cii, receive for their services a compenaatioQ, wblcb
■baU not be diminbibed during their oonUnuanoe in otDoe.
SEcnoK 2.
^V I. The Judicial power ahall cxtoiul to all casea, in law and eqnity,
I arising under ttiiv Constitattoo, Uic laws of the Uoited States, and
I tnatica made, or which «liall be ma<)e, under their authnrily ; to all
^^ cawa affecting amhaasadorv, other public ministers and onHaln ; to all
^H eases of admiralty and maritime Jurisdiction ; to controreraies to which
^^ ' the United States shall bo a party ; to controveraies between two or
L more States, between a State and citLEena of uaother State, Iwtwcca
^^U eitixeua of difFercnt States, between cttlaens of the same State claim-
^V I tag Innda nuder grouta of different States, ami between a State, or the
^K \ citixcnK thereof, and foreiKU states, citizeita, or aabjecta.
^H 3. In all coMiH a/Tccting ambasaadora, other public ministers and
H consuls, and tbotte in whkh a Stats shall be a party, the Supreme
Court sball have origiiud jurisdiction. In all the other casea before
xliT
THB COManTUnON.
meationc<I, the Supf«in« Court aball tiave app«Unt« Jurisdiction, both
an to liivr nail fiiot, witb such cxc«)(ti<>uit, uniJ under Budi rvgulatiooa,
as the Coflgraad Hhall mnke.
3. Tbc triul of «11 criiDcii, except in cues of imp««dim«nl, nhatl bo
b; Juiy ; *aA wicfa trial ufaftll be held in the State where tlic Miid crimes
sliall havo t>ecn committed ; but whca not committed within any State,
the triad Hfaall be at such place or places ss the Congncs may by law
have directed.
Sscnox 8.
1. Treason against the United SlAtca altol) oonaiHt only In Icryiog
war against them, or in a<lheriiix to their enemiex, giving them aid and
comfort. No penon ttliall )>e convicted of treason unless on the testi-
mony of two witneitscs to the same oreit act, or on confession in open
oowt.
2. The Congress shall bare power to dedare the panisbmcnt of
treason, but no attainder of treason shall work eormptlou of Mood,
or forfeiture, except during tliu life of Itie perwon ultuint«d.
/
ARTICLE IV.
SecnoH 1.
I. Fall faith and credit ohall l>c given in each i^tatc to the public
acts, records, and judicial proccedingx of every other 8tate. And th«
Cotigrcss may by general laws prescribe the manner in which such a£te,
records, and proceedings shall be proved, and tbe effect thereof.
SBcnoR 2.
1. The cilixens of each State shall bo cnttllcd to all privileges and
Immunities of citizcnR in Uie several Stntot.
i. A p«ra0D charged in any State with treason, felony, or oUier
crime, wbo sh4dl flee from justica, and be found in another State,
shall, on demand of the oxecotire authority of the Stnt« from which
be fled, be delivered up, to be reiuoved to the State having Jmisdictlon
of the crime.
3. No person held to service or Isbor In one Stale, under the laws
tfaereof, eacapinf into another, xhall, in consequence of any law or
r^laUon therein, be discharged from wich service or labor, but slioll
be delivered ap on claim of the party to whom audi service or labor
may be due.
Skction 8.
1. New States nay be admitted by the Congrem into this Union :
but no new State shall be formed or erected wiUilu the Jurisdiction of
lOK.
Xlv
aoy other SUte ; nor any State be fonned by the Janction of two or
more Ststea. or parts of States, without the consent of the lej^BUtures
of tb« States ooDoem«d, as well as of the Congress.
2. TIte Congress afasll have power to dispose of aud nuke all need-
ful rulos oud r«gn1alloua reepectinf! the territory or oilier prc^wrly be-
longing to the United States ; and uolhiiig in this CoDHtilulion sliall be
■o constraed as to prejudice any claims of liiv Uuitvil SUtes, or of any
|>articular St«tc.
Sbctioii i.
I. The Unit«d Statn) alinll ^uaruntee to ereiy St*l« fa thit Union a
epabliean fono of gov o mm cut, nnd »liiill prot«et eedi of tbein ^alnat
inrasion ; and on npplicatioo of Ui« lej^islalnre, or of tltv exemtive
(when the legisUture cannot be convened), against dooKstic Tiolencc.
ARTICLE V.
I. The CoDgresB, whenQver two thirdu of txitli IwDties Hhall deem Et
Decessary, ebatl propose amendments to tliis ConntitiitJon, or, on the
application of the legislatures of two thirds of the seTcral States, shall
a coQTenttoo for propOMng amendments, which, in either case,
'■halt be valid to all intents and purposes, as part of this ConstitutioOf
when ratilicd t>y tltc IcgiNlaltires of three fourtlis of tiie aevoml StutM
or by coDTcntiont in three foortha thereof, an the one or the oUier
Dwde of rattflcattOD may be propoacd by tbe Congress : Provided, that
fBO ameodioeiit, which may be made prior to the year one thousand
{bt hundred and eight, abatl in any manner afteet the first and fourth
fdaoacs tn the ninth scuUon of tbe first arttdc ; and that no .State, with-
out Its consent, sliall be deprived of its equal sulTrage in the Senate.
AKTICLE VI.
1. AH debts contracted and engagementa entered into, before tlie
plioa of this Constitution, shall be as valid against tlie United
StatM under tlila Constitution aa under ttie confeileralioii.
X. Tliis ConHtitution, and the laws of tbe Cnitcd States which aliall
Jbe made in pnnniaace thereof, ami all treaties miuh, or which Khali l>o
■ade, under the antliority of tbe Unitctl States, Ktiall tw the supreme
law of the land ; and tbe jndgeK in every State shall bo bound thereby,
Bjrthtng is (he constitution or law8 of any State to the contrary not-
3. Tbe senators and representatives before mentioned, and tbe
^nembera of the several State legislatures, and all executive and jadi-
I olBcers, both of the United States and of the several States, shall
xlvi THE COKBTlTUnW.
be bound, hj oftth or afflrnutaon, to support this Coustitation ; tmt no
religioos tert eh&ll ever be required aa a qoaliSofttioa to iny offloe or
public troBt under Uie United States.
AETICLE VU.
1. The ratiflcatJon of tbe conventtona of nine Statea ahall be suffi-
cient for the establishment of this Constitutioa between the St«tee so
ratifying the same.
10K.
zlrii
AMENDilENTS TO THE CONSTITUTION.
ARTICLE I.
Congress sball mtke no l«w Kapecting an esUblishment of relig:ion.
Of piobibitjng Uu: frc« eietdae thereof ; or abridging tbe freedoni of
speech, or of the prats ; or the Hf bl of tbe p<!ople p«Meably to uwom-
ble, and to petitioa the government for » n-di«»s of gricvaiKes.
ARTICLE II.
A welUrcgiilntcd mititin being occcsaarjr to tli« Bocoiily of a fr«e
state, tbe right of the people to keep ami bear anus «haU not be
infringed.
ARTICLE in.
No Mldicr shall, in time of pc*oc, be <iuartered in any lionse with-
out the consent of Uie owner; nor in time of war, but in a manner to
be prescribed by law.
ARTICLE IV.
Tbe right of tbe people to be secure in their persons, bonses, p&pcn,
and efTects, agaloBt unreasonable searches and seizures, shall not be
violated; and no warranto shall Issue, but upon probable eouac, mip-
ported by oatli or alUnnation, and pm-tirulnrly deiioriljing tbe place to
be aearcbed, and the pei*on» or tlii»g« U> be scixod.
ARTICLE V.
Mo peraoD ^all be held to answer for a capital or otiierwisc tnfa*
rnons crime, unless on a presentment or indictment of a grand Jury,
eioept in eases arising in the land or uaral forees, or in the mtlitJa,
when in actual ser^-ioe. In time of war or [HiMic danger ; nor shall any
person be subject for tbe same offence to be twice put in Jeopardy of
life or limb ; nor aliidi he compelled, hi any criminal case, to be a wit-
oaM Bgalnsi bimMlf, nor be deprived of life. Liberty, or property,
without duo procesa of law ; nor shall pciraGe property be taken for
public nee without jast compensation.
ARTICI-E Vt.
In all cHminal prosecutions the accused shall enjoy tbe right to t
•psedy and public Irial, by an iin{>aitial Jury of the btate and district
xlriii THE
wherein the crime ttball Iiavv been committed, wliicfa district Rhall hxn
been previously uoorUiDed hy law ; utd to be iurornicd of tbe nature
■ad MOM of the accnsatioQ ; to be confronted witb the witiwa
■ftlttft him : to h«ve compulsor? process for obuiniog iritneesefl inl
hift fsTor ; and to hmve tbe ueistance of oonnse) for bia defrace.
ARTICLE VII.
In Miit« at common Uw, wltere tbe value In controversy sbaU exc
twenty dollars, tbe right of trial by Jury shall be preserved ; and no
Tact tried by a Jury shall be oltivrwiM re-examtned in any oourt of i
United ^Ule^, than accwnliutj to the niles of the oobudod Uw.
ARTICLE Vin.
Exce«siT« bnil NbaTI not lie required, nor excessive fines imposed,
□or citiel aad unusual puui«hm«ala Inflicted.
ARTICLE IX.
Tk* «DunMretion in tlie Constitution of certain tigbta shall not
eoaBtroed to deny or diniMruge otben relsiaed by tbe peo^.
ARTICLE X.
Tbe powers not delefcated to the United Stales by the Conatitntloo
nor pndiibiled by it to the Statss, are reaerred to the States
UTdy, or to the poofile.
ARTICLE XL
The Judicial power of the Cnited Sutes ahall not bt ooostraed to
SZtMtd to aur suit in law or equity, oomawncvd or prosecotsd
OM of the Vuit<tl States by citiacu of aDotbcr State, or by cit
anbjeoti of »y f oraigB M«t».
ARTICLE XIL
1. Tbe electM* AM iMrt in tbeir lespectlie State*, and mte
ballot ftw rissiJtal and Tiee-rrcsMlent, one of whan, at IcMt. i
Ml bt aa IsH"*"' ** the sane State wftb tfacswdns; they
naate in the fasUals tbe peraon voted for as PrcsidenV, sad la
tMOoM the pcnoa Toted for as Tkw-IVetidsst: smI Itwy i^aB
AtltiMl Ms of an patww volstl foe as rnaaim. aad of all
volsd (or m Vke^Pmsdat. and of Ibe aanbo- of voles fgr
TBE
xlix
which li«t thej iitiiJI sign aad certify tad Xnonail walftd to tli« Mat
of the goToniinvat of the Unit«Ml Stat«K, directed to the premdentof
tbe S«n*t8 ; the prciHd«nt of tha Sco«tc olmll, in ttic [)rcHtrDc« of the
lJeDSt« and Houm of RcproaentativM, 0|>eD all tlic viTti<ic3it««, nnd
the Totee shall then be oouDt«d ; the person having th9 greatest num-
ber of votes for IVesident etuJl be the President, if wich nnmber be ■
majority of tbe whole number of electors appoint«d ; and if no person
hare Buch majority, then from the persona having tlie highest numbers,
not exceeding three, on tlie lint of tlxwe vot«d for, as President, the
Ilome of Bcpretentativex »liall cIioohu iniinv<)iat4:ly, by Inallui, tli«
President. Unt, in choosing tbe I'rcHidcnt, th« votes fliall l>c taken
by States, the representatton from each State having one vote ; a
quorum for thb puriM»e ehall constat of a member or membem from
[■two thirds of the StJttea, and a majority of all the Sut«8 stiall be ne-
cewary to a choice. And if the Houiie of l{epresenutive« shall not
cbooMC a Preaident irhrncTer the right of choice shall devolve upon
them, before the fourth day of March next foIIowiDg. then the Vice-
President shall act as IVcsideiit, as in the case of the death or other
constitutional disability of the President.
8. Tbe person having the greatest nuintwrof TOtea as Vice>Preri-
dent shall be the Vfce-Prealdent, if »uch numlicr b« a majority of the
whole number of ciccton appointed ; and if oo person have a m«}ority,
then from tbe two highest numbers on the list the Senate ahall choose
tbe Vice-President: a quoruoi for the purpose aliall consist of two
thirds of the whole nnmber of senaton, a majority of the whole
number shall be necessary to a choice.
8. But no peraoD constitulionally ineligible to the office of President
ahall be eligible to that of VioC'l'residcnt of tbe United States.
ARTICLE XIU.
I. Neither slavery nor involuntary aervltnde, except as a punish-
tnent for crime, whereof the party shall have bo^n duly convicted,
ibal! exist within tbe United States, or any place subject to their
iJuisdletion.
i. Congress shall have power to enforce this artii^e by appropriate
legislation.
ARTICLE XIV.
1. All penons bom or naUualfxed in the United States, and subject
to the Jurisdiction thereof, are citizens of tbe United Sutea and of tlie
Stale wherein they reside. No State shall ninl:c or enforce any law
'which shall abridge the privileges or immuiiitirH of citixena of tlic
United 8t«te« ; nor shall any Sute de]>rive any i>cr»on of life, liberty,
TOL t. — d
I
THE COSSTITOnOK.
or property, witliont doe proocw of low. nor deny to any person wifbla
its juriwitction the equiJ protection of the laws.
2. Repreeeatativcs shall be apportioned among the Bererml St
a«coMln(; to their respective numbers, oonntlDg; the v1r>I« ntimbcr i
persona fu each State, excladlng Indians not taxed. But wlien the
riglit to vote at an^- elMtion fnr the choice of electors for IVesidentJ
uud \'ic«-l'roHidMit of tlic United State*, represcntnthres in CoDgresst'
the exectitiTS and jwlieial ofKccrs of a State, or the members of the
legislature thereof, is denied to any of tbe male inbaliilaata of suchi
State, being twenty-one years of age and dtlKCiisof the United StatWtj
or in any way abridged, except for partlctpation in relxUlion orothe
crime, tbe basis of repre«entatioii therein sludl be reduced in tbe pro- '
poitioo which tbe number of inii:li niiLJe citizens aboil bear to the whole
niunl>er of male cilixcnn twcnty-oiw yvarw of age in such Stale.
3. No pereon eball be a senator or repreeentatire in Congrees, oi
elector of President and Vice-President, or hold any ofAce, dvit or
nilitiiry, nnder tlie ITnii«d Stat«a or under any State, who, having pfe>J
Tionsly t4tlie» an oath m a memix-r of Congress, or as an ofllcer of th«i
United Stat««, or na a member of any State Icgialnture, or aa an ex*
ecntire or judicial ofllcer of any State, to support Uic Contttitotion of
the United States, ahall have engaged in inmirn^i-tion or rebellion'
against the aame, or given aid or comfort to tbe enemies thereof.
B«t CongraM may, by a rote of two thirds of each bouse, remove
snob dtaabitity.
4. Tbe validity of the pnbliedebtof Ibc United States authorized
by law, iodnding delits inciimrd for payment of jien^ions and bountie*
for Mrrk-ea in Boppreeeii^ insurrection and rebellion, shall not be
qiieationed.
Itnt neither tbe United States nor any State shall assume or pay any
debt or obligation Incurred in aid of iusurrection or rebellion against tbe
United Stotca, or any claim for tbe loss or emancipation of any Alave ;
hot all audi debia, obligations, or claims shall be held illegal and void.
6. The CongreM elinll luive power to enforee by appropriate legisla-
tion the provisions of this article.
ARTICLE XV.
1, The right of citizens of the rnite<l States to vo« shall not be
denied or ai>ri4l|ted by the United States, or by any State, on acconnl
of race, color, or previous condition of servitude.
2. The CottgTCM shall have power to enforce this article by appro*;
priate It^palotioa.
COMMENTARIES ON THE CONSTITUTION.
VOL. I. — 1
COMMENTARIES.
FRELTMINAKy CHAPTER.
PLAN OF THR WOEUC.
Tbb principal object of th^no Ooramentaries is to prment a
full atialyiiis and Etxponiitiun of the Oonatitation of Uovonmtcnt
of the United Stativ of America. In order to do this with
clearn««B niid accurucir, it !» ncceHtuiry to underBtand what was
tbo political poattioD of tlio ftuvcriil Stated composing the Union,
la relation to each other at the time of ita adoption. This will
naturully conduct us beck to the Americau Revolution, und to
tlio furnitttiun of the Cuiifcduratiun cunxe<juent thereon. But if
we stop bore, wo Bhall still be surrounded with many diflicultiea
io regard to our domestic inHtitutions and poliey, which bare
l^wn out of transactions of a much earlier date, connected on
one side with the conmion dependence of all the colonics upon
the British Empire, and on the other with the [narticular char-
tem of ftovcmment and internal legislation which hclongvtl to
each colony as a distinct sovereif^ty, and which have imprcsHod
npoD each peculiar habits, opimons, attochmonte, and even pre-
judices. Traces of these peculiarities arc everywhere disocraibte
in tile actual jurisprudence of each State; and are silently or
openly referred to id several of the provisions of the Constitu-
tion of the United ytatot*. In short, without a careful review of
the origin and i^onstilutional and juridical history of all tbo col-
cafes, of tlic principles common to all, and of the diversities
which were no less rcnutriialile in all, it would be impoA.4ib1e
fully to understand the nature and objects of the CouHtittition;
the reasons on which several of its most important prorisioos
are fmmded; and the necessity of those concessions and com-
promiscs which a desire to fonn a solid and perpetual Union has
incorporated into its leading foaturea.
COMBTITDnOKAL LA.W.
The plan of the work will, therefore, natarallj comprehend
three great divisions. The first will embrace a sketch of the
charters, conBtitutional histoiy, and antfl-revolationary jurispni-
dence of the colonies. The second will embrace a sketch of the
constitutional history of the States during the Revolution, and
the rise, progress, decline, and fall of the Confederation. The
third will embrace the history of the rise and adoption of the
Constitution; and a full exposition of all its provisionB, with
the reasons on which they were respectively founded, the objec-
tions by which they were respectively assailed, and such illustra-
tions drawn from contemporaneous documents, and the subsequent
operations of the government, as may best enable the reader to
estimate for himself tbe true value of each. In this way, as it
ie hoped, his judgment as well as his affections will be enlisted
on the side of the Constitution, as the truest security of the
Union, and the only solid basis on which to rest the private
rights, the public liberties, and the substantial prosperity of the
people composing the American Republic.
BOOK I.
HISTORY OF THE COLONIES.
CHAPTEtt I.
ORIOIK OP THE -mtS TO TERRITORT OF TBE QOLONtKS.
{ 1. Thp. discovery of the continent of America hy Columbus
in the lift«!ulh century awakened the attention of all the mari-
time statea of Euro]>e. Stimulated by the iove of glorj-, nnd still
more by the hope of gain and dominion, many of Ihem c&rly
embarked in adventurous enterprises, the object of vhicli was to
found colonics, or to search for the precious metals, or to ex-
change the product* and manufactures of the Old World for
whatever was most valiuible and attractive in the New.' Kng-
land was not behind her continental neighbors in seeking her
own aggrandizement, and nourishing her then infant com-
merce,' The ambition of Henry the Seventh was rmised by tJie
communications of Columbus, and iu l-l'J5 he grantt->d a com-
mission to John Cabot, an enterpriaing Venetian, tlien aettlod
in England, to proceed on a voyage of discovery, and to sutxlue
and take poe^iesaion of any lands unoccupied by any Christian
Power, in the name and for the benefit of the British Crown.*
In Uie Ruc^'oeiling year Cabot sailed on his voya^ro, luid having
first discovered tiie islands of Newfoundland and St John's, bo
afterwards sailed along the coast of the contiiwnt from the d6th
to the SHth degree of north latitude, and claimed fur his BOv«r-
ei^ the vast region which stretches from the Gulf of Mexico to
tlie must northern regiona.'
■ HmiImII'* Amw. CMobIm, 12. 13; 1 Hu. Collw- n, 72. 8^ tOS. 105; RobtftMn'i
1]Iib«f Ammic^B.*.
■ IMutaea') Ancflfla, B. 0.
• 1 llu. Coll. 9 ; HobMtaMi'* HbL ef Amniea, B. 9.
* HsnWI, Ata. (M«m. IS, 18 ; BobtHm'* ABMrkt, B. »■
6
BISTORT OF TBB COLONIES.
tDOOKI.
§ 2. Sach is the orijpD of the Brttieh title to th« territory
composing thi-sv Unit»l StAl«K, That title wa» foumlei] on the
right of disooTcry, a right which was held among the European
nations a jii«t and snflicient foumlation on wliich to rest their
ruspcctive claims to the Ainericnn continent Whatever contro-
rereic* existed among them (and thej- were numerous) respecting
tlie extent of their own aeijuiflitiomi aliroad, they appealed to
this a^ tlie ultimate fact, by which their various and conflicting
claims were to be adjnsted. It may not be cosy upon general
reasoning to establish the doctrine that priority of discovery con-
fers any exclusive right to territory. It -was probably adopted
by the European nations aa a convenient and Bcxibic rule by
which to regiUate their respective claims. For it was ebvioos,
that in the mutual contests for dominion in newly discovered
lands, there would soon arise violent and sanguinary struggles for
exclusive possession, unless some common print-iple should bo
rccogni'ied by all maritime nations for the benefit of all. None
more readily suggested itaelf than the one now under considera-
tion; and OS it was a principle of peace and repose, of perfect
equality of benefit in projxirtion to the actual or supposed ex-
penditures and hazards attendant upon such enterprises, it re-
ceived a universal acquicMencc, if not a ready approbation. It
became the basis of European polity, and regulated the oxerciae
of the rights of sovereignly and settlement in all the cisatlantic
Plantations.' In respect to dc«ert and uninhabited lands, there
docs not seem any iniporlnnt objection which can be urged against
iL But in rcsi>cct to countries then inhabited by the natives, it
ia not cosy to perceive how, in point of justjoe or humanity, or
general conformity to the law of nature, it can be successfully
vindicated. As a conventional rule it might properly govern all-
the nations which recognized its oblijzatioa; hut it could hoTe
no authority over the alwrigines of America, whether KUthered
into civilirod communities or scattered in hunting tribe.s over
the wildomcfls. Their right, whatever it was, of oecnpakUoa or
nao, stood upon oripinal principles dedncible from the law of
nature, and could nut be justly narrowed or extinguished with-
out their own free eonsejit
§ 3. There is no doubt thai the Indisu tribes, inhabiting this
continent at the time of ils discovery, maintained a claim to the
iJaluuDa«.M'Iiito«b, 8Wliatt.H.ftU,B72, S73; 1 Doug. !i«iDiii. 110.
en. I.]
OBICIM OP THE TtTLE TO TEBHiTOBV.
«xcla8ivc posKCMinn and occnpancy of th« territory vitiiin tlielr
'jtspectiTO limitH as Rorcreigna and absolute prc^rietora of the
toil. The; acknowledged no obedience or allegiance or siibor*
dination to any foreign sorerciioi whatsoever; and as far as they
bare poneeosed the means, they have ever einco asserted this
plenary right of dominion, and yields) it up only when lost by
the superior force of conquest, or transferred by a voluntary
oesaioD.
$ 4. This is not the place to enter upon the discussion of the
question uf the actual morits of the titles claimed by the respec-
tive portien upon principles of natural law. That would involve
the cuasideration of many nico and delicate topics, as to the
natur(^ and origin uf pm|KTty in tlw soil, and the extent to which
civilized man uiiiy dittunnd it from the savugi! for uses or culti-
vation different front, and perhaps more beneficial to, society
than the uttc» Ui which the Inlt<.-r may chouRe to appropriate it
8ucb topics belong more properly to n treatise on natural law
than to lectures profeMing to treat upon the law of a siogto
nation.
§ 5. The European nations found litllc difficulty in reconcil-
ing themselves to the adoption of any principle which gave
ample scope *o their ambition, and employed little reasoning to
support it. They were content to take counsel of their interests,
their prejudices, and their passions, and felt do necessity of vin-
dicating their conduct before cabinotft, which were already eager
to rceognizc its justice and its policy. The Indians were a sav-
age race, sunk in the depths of igiiomnce and heathenism. J(
tl»ey might not be extirpated for their want of religion and jnst
morals, they might l>e reelaimed from tbeir errors, Thuy were
Imund to yield to tlio sujierinr genius of Kiirope, and in exchang-
ing their wild and debasing habits for eiviliiation and Christian-
ity they were deemed to pain more than an equivalent for every
sacrifice and suffering.' The Papal authority, too, was brought
in aid of these great designs; and for the purpose of overthrow-
ing heathenism, and propagating the Catholic religion,* Alexan-
■ a VbMt. It. SiS, &T8 i I Hai.Coll.SOi 51, 73, S3; 103, lOS; Vklttl. K I. di. IS,
U 907, toe, M*. ud Bota.
* " Ut thin CWUialio, et ChriUiam Bdigio UMtrii pntaertim tenpodbm cnlMv,
ftt., M hubant niUoMi dapnnMBtar, «t ad Uctn ipMn ndacaatnr," U th» \angTncii
«f tha BolL 1 Uai. CdL S.
8
HIOTOBT OP THE COLOKIBS.
[BOOK I.
dcr the Sixth, hy a Bull issued in 149}t, granted Us Uie Orovo of
Castile the whole of the immense territorj' tlien discovered, or
to be discovered, Iwtween the poles, so far «« it was not tluta
possessed 1)}* anj Christian prince.'
§ (\. The principle, then, that discovery gave title to the gor>
crament, hy whose nubjccts or hj whoae authority it waa made,
against all other European (^venunents, being once established,
it follon-od almost aa a matter of course, that every government
within the limits of its discoveries excluded all other personti
from any right to acquire the soil by any grant whatsoever from
the natives. No nation would suffer cither its uwn subjects or
those of any other nation to set up or vindicate any such title*
It was deemed a right eKclusivcly belonging to tlie government
in its flo^-eroign capacity to extinguish the Indian title, and to
perfect its own dominion over the soil, and dispose of it accord*
ing to its own good pleasure.
§ 7, It may be asked, what was the effect of this principle of
discovery in respect to the rights of the natives themselves. In
the view of the Europeans it created % peculiar relation between
themselvca and the aboriginal inhabitants. The tatter were
admitted to poasees a present right of occupancy or use In th«
soil, which waa aubordinate to the ultimate dominion of tlic dis-
oovcrer. They were admitted to lie the rightful occupants of
the soil, with a legal as well aa jnat claim to retain pOMeesioa
of it, and to use it according to their own diitrretinn. In a cer-
tain sense they wore permitted to exercise rights of sovereignty
over it They might sell or transfer it to the sovereign, who dis
covered it; but they were denied the authority to diHpose of it
to any other pentuns; and uuti) such a sale or transfer, they
were generally permitted to occupy it as sovereigns df facto.
But notwithataading this occupancy the European discoverers
claimed and exercised the right to grant the soil, while yet in
pOBseMlOQ of the nati\-«s, subject howe^*er to Uieir right of oc-
cupBOCy; and the title so granted was universally admitted Uy
oonray a sufficient title in the soil to tlie gnuitee* in perfect
dominion, or, aa it is sometimes expressed in treatises of public
law, it was a transfer of plenum et utile dominium.
S 8. This subject was discnased at great length in the oelo-
■ Bu. (Ml«d. 3 : HanbaU. Hut. C<iL 13. U.
■ Chaluiati, Ahatit, K«,tn\ I Doug. aonw. 113.
CB. I.]
ORIGIN OP TOE TITLB TO TEBBITORV.
Iirated case of Johnson v. M'Intosh ; kntl one cannot do better
than traiiscrilw frum the pugcti of tliat report n nuiiimary of tho
historical coofinnatioiu adduced in support of tltc«e principles,
which is more clcAr and exact than has ever been before in
print
§ a "The history of America," My» Mr. Chief Justice Mar-
shall, in delivering the opinion of the Court,' (a) "from its
iliacoTery to the present day, proves, we think, the universal
recognition of the»e principles.
'••Sjiain did not rest her title solely on the grant of the Pope.
Her discussions respecting boumlary, with France, with dreat
Britain, and with the United States, all show that she placed it
on the riglits gicen by discovery. Portugal sustained her claim
to the Brazils by thu aamc title.
% to. ** France, also, founded her title to the vast territories
she claimed in America on discorerr. Hon-c^-cr conciliatory
her conduct to the natives may hare been, she still asserted her
right of dominion over a great extent of country not actually
a«tt)ed by Frenchmen, and her exclusive right to A«r|uire and
dispose of the soil, which remained in the occupation of Indians.
Her monarch claimed all Canada and Acndie, a« colonies of
France, at a time when the Frcncli population was very incon-
siderable, and the Indians occn)iicd almost the whole country.
He also oUlmcd Louisiana, eomprchonding the iuimt;iist; territo-
ries watered by the Mississippi, and the rivers which empty into
it, by the title of discovery. The letters-patent granted to the
Sieur Demonts, in ItlOJt, constitute h|m Lieutenant-Oencral, and
the representative of the king in Acadie, which is dmcribed as
stretching from the 40th to the 46th deRrne of north latitude,
with authority to «xtond the power of the French over that coun-
try and its inhabitants, to give laws to the people, to treat with
the natives, and enforce the observance of treaties, and to par-
cel out and give title to lands, according to hia own judgment
> S'HIinL 5t8. SMduVTonMCOTvOMTgit, < P<4«n'*B. SIS: 4 J«0>Nwa'(O>r-
mp. V»; Mickintofli'* Hudocrof EOiicid Philotopbr (PliiU. 163». SO; JobMoa *.
U-iBtod^ 8 Wbnt ft. STI-AUl
(a) 8n WWl Int. U«. pt t, cb. 4,
I S; Jfckmm «. Wood, 7 JoIim. »0i
Cltrt *. WUliuDi. 19 rkk. 1»0 1 OoMny
*. Bwdtlvr, S Ucljmt, 411 ; OoUmaa *.
Dmv 4 S. a M. 40 ; Jonai ». tna», S
YFTg. 3iS 1 BowUnd F. I>ailie>. 0 Port.
488 ; Spukmui t. Porter, t Faiiw, U7.
10
BISTOBT OF TBR OOLONIEB.
[boos I.
$ 11. " The states of Holland sIho made acquisitiiHis in Amer-
ica, anil sustaiucd (heir rltrbt on the common principle adopted
by all Europe^ Tlicy allege, as we are told by Smith, in his
History of New York, that Henry Hudson, who aailed, as they
say, nnder the orders of their Eaat India Company, discovered
the country from the Di'lavrare to the Hudson, up which he
sailed to the 43<! dc);rcfi of north latitude; and thia country they
claimed under the title flcquirv>d by thin voyage. Their fmt ob-
jcct wu« commercial, as appears by a fn^nt made to a company of
ntcrchanta lu \*>\4; but in 1^21, the Stateis^Oenenii made, as wo
are told by Mr. Smith, a grant of the couiilry to the Went India
Company, by the name of New Netherlanda. Ilie claim of the
Dutch waa alwaya contested by the English; not because they
questioned the title given by diacover)- but iMMraiiHe they insisted
on being themselreg the rightful claimants under that title.
Their pretenBions were finally decided by the sword.
§ 12. ''■So one of the powers of Europe gave its full assent to
this principle more unequivocally than England. The doca-
menta upon Ibis subject aro ample and complclc. So early as
the year 1496, her moiiureh granted a commission to Die Cabots,
to disooTer countries then unknown to Chrutian people, and to
take possession of litem in the name of the Kin^ of England.
Two years afterwards, Cnlxil proceeded on this voya^*, and dis-
covered the continent of North America, along which he sailed
as fur south as Virginia. To this discovery the English timc«i
their title. In this first effort made by Uie Eiiglisli gr>vernment
to acquire territory on this continent, we perceive a coiupk-te
recognition of the principle which has been raenlinned. The
right of discovery given by this commisBJon is confined to
oounlries ' then unknon-n to Christian people ; ' and of these
countries Cabot was empowered to take possession in the name
of the King of England. Tlius asserting a right to take pos-
session, ntjtwithstuiMling the oocuptincy of the natives, who
vero heatlnMis, and, at the same time, admitting the prior
title of any Christian people, who may ha^-e made a previous
discovery.
§ 13. "'Ilie same principle continued to be recognixed. The
charttT granted to Sir Humphrey Oilbert, in 1.^78, authorizt^
him t>i di3e()rcr and take possession of such remote, hnithen,
and barbarona lands, as were not actually possessed by any Chris-
CH. I.]
OBtttlN OP THE TITLE TO niBBITOBY.
11
tian prince or people. This charter was aftenrordB renewed to
8ir Walter Kalei^h, in nearly the same terms.
§ 14. "By tlic i-harter of 1C06, under which the first pcrma-
nt-Dt English BCtUemcnt on thia eontiaent was made, Jnmc8 tJic
Rr»t granted to Sir Tliomiui Gatvs and othera tbotie territories
in America lying on the sesi-coust between the S4th and 4ftth
tlugree of north lutitudc, and which cither belonged to that Dion-
urch, or were not tlicti poseeued by any other Christian prince
or people Hie gnmtecfl were divided into two compfinien at
tbeir own request The first, or southcni colony was directed
to settle between the 84tli and 4l8t de^^-cs uf north latitude;
and the second, or northern colony, between the 38th ajid 4oth
degrees.
§ 15. **!» 1609, after some cxpcDsivc and not very successful
attempts at settlement had been made, a new and more cnlariied
charter was g)i-<:-n by the crown to tlie first colony, in which the
king granted U> the 'Treasurer and Company of Adventurers of
the city of London for the first colony in Vii^inia,' in absolute
|M«perty, the lands extendiiii; along the sea-nxnat four hundred
miles, and into the land thnxighoul from sea to sea. This char-
ter, whicli is a part of the special verdict in this cause, was
annulled so far as respwied the rights of tlie company, by the
judgment of tJie Court of King's Uench on a writ of yiw wat-
ranta; but tlie whole effect allowed to this jiidgmeDt was, to
rerest in the crown the powers of government, and the title to
the lands witliin its limits,
§ Id. " At the association of those who held under the grant to
the second or northern colony, a new and more enlarged diarter
was granted to the Duke of Lenox and others, in 1620, who were
denominated the Plj-mouth Company, conveying to tJiem in abso-
lute property all the lands between the 401h and 48th degrees of
nortli latitude. Under this potent. New Engliind has been in a
great measure settled. The company conveyed to Henry Iluse-
well and others, in 1G27, that territory which is now Massachu-
setts; and in 1628, a charter of iaeorporatlon. comprehending
the powers of government, was granted to the purchasers. A
great part of New England was granted by this company, which,
at |i>n>r1h, divided their remaining lands among themselves;
and, in lt!3.>, surrendered their charter to the crown. A patent
was granted to Gorges for Maine, which wag allotted to him in
12
HISTOttr OP THE ooLoxica.
[dookl
tho diviginn of propertj-. All the fcmntu made by thu Plymoutli
Compunv, so far an ve can loam, have been respected.
§ 17. "In pursuance of the same prmciple, th« king. In 1664,
granted to "the Duke of York the country of New England as far
(wulh as the Delaware Bay. Hia royal hif,'l>nc«w transferred New
Jersey to Lord Berkeley and Sir OcorRo Cnrtt>rc(.
§ 18. "In 16138, tlio crown gronbi-d to Lord Clarendon and
others the countrj- lying between the SGth dcKroo of nortli lati-
tude aud the river .St. Matliea; and In 1666, the proprietors ob-
tained from the crown a new charter, pmnthig to them tliat pror-
in<!c in the kin);'a dominions in North America, which liea from
86 degrcea SO minittes north latitude to th« 29th degree, and
from the Atlantic Ocean to the Hoitth Sea.
§ 19. ** Thus has utir whole country been granted by the crown
while in tlie occupation of the Indianx. Thoao grants purport to
coniTv tho soil, ns well us th« right of dominion, t:0 the grantees.
In thtwc governments which were denominntcd royal, where tho
right to tlic soil was not vested in indiridnals, but n>maincd
in tJie crviwn, or was vested in the colonial government, the king
claimed and exerriined tlie right of granting landn, and of dia-
membering the govemmont at his will. The grants made out of
the two original colonies, after the resnmptjon of tJieir rharlers
)>y the crown, are examples of tbix. The goremmenta of New
I^nglaitd, Now York, New Jersey, Pennsylvania, Maryland, and
a part of Carolina were thna created. In all of them the soil, at
the time the grants were maile, waa oreupied by the Indiana.
Yet almoat every title within thoae governments is dependent on
theae grants. In aome inKtaneeo, the soil waa conveyed by the
crown itoaccompanied by the powera of fro^-emmcnt:, a« in tho
case of the northern neck of Virginia. It lias never been ob-
jected to tliia, or to any other similar grant, that the title as well
•s pwutouion was in the Indiana when it u-aa made, kod that it
passed nothing on that accooat
§ 20. "Tliese various patents cannot bo conaidcrod as nnlU-
ties; nor can tJicy )>« limited to a mere grvnt of the powers of
go\emn>ent A charter intended to convoy political power mily
would never contain words oxpressly granting the land, the
soil, and the wateru. Some of them purport to ooav^ the soil
slone; and in tbnae cases in which the powers of govemmetit as
well as the soil ore conveyed to indiridnals, the crown has always
CB. I.]
ORIGIH OP THE TrTLE TO TESBITtiKY.
18
acknowledged itoelf to bu bound by the grant. Though the power
to dittiiicmlxsr rugal govcrumontn wuh a«ti«rt«d and exprciacd,
the power todi»i»cmbcFpruprt<.-tarjgovctrmucntawas not claimed.
And, iu some instaiicen, vwu after the powora of government were
reveeteii in the cruwn, the title of the proprietors to the aoil vaa
respected.
f 21. "Charlo* the Second was extremely anxious to acquire
the property uf Uuinu, but tJie grantecA sold it to Maiuiachusotta,
and he did not venture to contest tbo ri^t of tbo colony to the
soil. The Carulinua were ori)!iuaIly proprietary goTCniniontii,
Id 172), a revolution was effected by the peopU\ who sliuok off
their obedience to tlie pruprietont, and declared Uieir depcndeuoc
immediately on the crowu. The kiug, howercr, purchased the
title of tlioae who were disposed to scli. One of them, I>ord
Carteret, surrendered his intereat in the government, but retained
his title 10 the soil. That title wag re»|)ected till the Revolu-
tion, when it was forfeited by the lawa of war.
S 22. " Furtlier proofs of tlie extent to which this principle
hag been recognized will be found in the history of the wars, ne-
gotiations, and treaties which the difTcrent nations claiming ter-
ritory in America have carried on, and held with CAch other.
Ilw contests between the cabinets of Veraaillcs and Madrid re-
specting the territory on tJie nortlicm cotut of the tliilf of Mexico
were fierce and bloody; and continued until the ejitabliahment
of a Bourbon on the throne of Spain pntduced such amicable dis-
poaitiona in the two crowns as to suspend or terminal*! them.
Between France and Great Uritain, whose discoveries, as well aa
settlements, were nearly contemporaneous, ountests for the coun-
tty actually covered by the Indiana lie^an as soon as their aettle-
ments approached each other, and were continued until finally
settled, in the year 1768, by the treaty of Paris.
$ 23. "^ Each nation had grant^-d and partially settled the coun-
try denominated by the French Aoadie and by the Hnglish Xova
^otia. By the 12th article of the treaty of Utrecht, made in
1708, his most Christian Uajoaty ceded to the Queen of Great
Britain 'all Nova Hcotia, or Aoadie, with its ancient boiinda-
rieo.' A great part of the ceded territory waa in ponesaion of
the Indians, and the extent of the cession could not be adjusted
by the commisiiioners to whom it waa to be referred.. The
ti«aty of Aix la Chapelle, which waa made on the principle of
14
BISTORT OP THE OOLOKISa.
[BOOK I.
the ^tat^u ant4 helluva^ did not remove this subject of contro-
verey. Gominisntoiiers for its adjustment van upjMiinted, vhoae
very nblo nnd elaborate, though unsuc<M?ftsful ar^imvuts in favor
of the title of their renpectivw sovcreignii show how cntireiy each
relied on the title given by disvorery to londfl remaining in the
pOBSeKsion of Indians.
' § 24. "After the termination of thi« fruitlMti digeuBsion, the
aubjcct waa transferred to Kiirupo, and tiiktin up by the caltineta
fA Versailles and London. "Vhia controversy embraccid not only
the boundaries of New England, Nova 8ootia, and that part »l
Canada wbiob adjoined thtwe colonies, but embraced our whole
Wititcm country alMX Franoo contended not only that the St
Lttwrenot! wag to Ik> considered as thn centro of Canada, but Uiat
the Ohio una uitliin that colony. She founded this claim ondis-
corery, and on having used that river for the tranaportation of
troofM in a uar with some Southern Indians. Thii* river was
comprehended in the chartered limita of Virginia; but, though
the right of England to a reaaonable ext44nt of coimtry, in virtue
of her diseovery of the nea-roaat, and of tlie Rettlementa ahe made
on it, vaa not to be questioned, her claim of all lands to the Pa-
cific Ocean, because the bad discovered the country wnalied by
tlie Atlantic, might, without den^ating from the principle reoog*
nized by all, be deemed extravagant It interfered, too, vith
the claims of Franco founded on the same principle. She there-
fore sought to atrenglhen ber original title to the lands in con>
troveray, by insigting that it had been acknowledged by FranoOj
in the 15th article of the treaty of Utrecht The dispute
specting the construction of that article has no tendency to impall
the principle that discovery gave a title to lauds still remain*
ing in the possession of the Indiana. Whichever title pre-
vailed, it was still a title to lands occupied by the Indiana, whoso
right of occupaney neither controverted, and neither had then
extinguished.
§ 25. "Thcae conflicting claims produced a long and bloody
war. which was terminaU-d by the conquest of the whole country
east of the Hissisaippi. In the treaty of 1T63. France ceded and
guaranteed to Great Britain all Nova Sootia, or Acadie, and
Canada, with their deix-ndpucira; and it was agrewl, that the
boundaries between the territories of the two natioofi in America
should be irrevocably fixed by a line drawn from the source of
ca. I.]
OftiGW OF TUB TITLE TO TEEBITOBy.
15
the MittiBsippt, tliroug:Ii th« tniddlo of that rirerand the lakes
Maurepag and FuiitchArtrain, to Uie eea. This treat}- expressly
cedes, and has always been understood to ocde, the whole coua-
try on the Koglish side of the dividing line between Uie two na-
tions, although a great and valuable part of it was occupied by
the Indiana. Great Britain, on her part, surrendered to France
all her pretcnaiuns to the country west of the Missisflippi. It
baa novor bevn auppusod that she surrendered nothing, althou^
' Bho waa nut in actual poaaeaaiun of a foot of land. She surren-
dered all riglit to acquire the country; and any after attempt to
purchase it from the Indians would have been considered and
trvatcd as an invasion of the territories of Franoei
§ 26. " By the 20th article of the same treaty, Spaio ceded
Florida, witli it« dependencies, and all the country she claimed
Mat or southeast of the Uississippi, to Great Britain. Great
pert of this territory also waa in p"j8sc»«ii>n of tlic Indians.
§ 27, "By a secret treaty, whi<:h was esccut*-d about the same
time, Frauce ceded Louisiana to Spain; and Spain has since
retroccdvd the same country to France. At the time t>oth
of its cesaiua oud rctruccssiou, it was occupied chiefly by the
Indiana.
$ 28. "Thus, all the nations of Europe who have Acquired ter-
ritory on this continent have asserted in themselves, and have
reeo^ized in others the exclusive ri(;ht of the discovery to appro-
priate tbe lands occupied by the Indians. Have the American
Stat4?s rejected or a^lopted this principle?
§ 29. "By the treaty which cunehided tlio war of our Bevolo-
tion, Great Britain relinquished all claim, not only to tlie gov-
ernment, but to the ' propriety and territorial rights of the United
States,' whoso boundaries were fixed in the second article. By
this treaty, the powers uf government, and the right to eoil,
which had previously been in Great Britain, psfued dofinitely to
ihiwc Statfu. Wu bad liefura taken poRBension of them, by de-
vlarinK independence; but neither the Declaratioa of Independ-
eiioe, nor the treaty confirmini; it, could give us more than that
which wc iK^fore possessed, or to which Great Britain waa l*efora
entitled. It baa never been doubted, that either the United
States or tbe several Ktatea had a clear title to all the lauds
irithin the boundary linca dcAcribed in the treaty, subject only
lo the Iitdiaa right of oocupquicy, and that the exclusive power
16
BISTORT OF THX COLOKtES.
[buck I.
(0 «xtlDgui«h thnt right was i-ested in that gorerntDCDt whicli
might ootistitiitionally exercise it
§ 30. "Virginia, particularlr, within whoae chartrrcd limita
the Und in controveray lay, piaiui«d an act, in the year 1779, de-
claring; her 'oxcIiuiTe right at pr<»-empti<m fruu the Indiana of
all the lands within the lintita of her own chartered territory,
and that no persona whatsoever have, or ever had, a right to pur-
chase any landn within the same from any Indian nation, excegit
. Mily penwna duly authorized to make such purchase, fonneriy
for the Hso and bonelit of the colony, and lately for the Common-
wealth.' The act then proceeds to annul all deeds inadu by
Indiana to individuals for the private use of the purchasers.
§ 81, "Without ascribing to this act the power of annulling
veatod rights, or admitting it to counten*ail the testimony fur-
nished by the marginal note opposite to the title of the law for^
bidding purchases from the Indiana, in the revisals of the
Virginia statutes, stating that law to be rc'pealed, it may safely
be considered as an unequivocal afllirmattce, cai the port of Vir-
ginia, of the broad principle, which had altcays been maintained,
that the exclusive right to purchase from thv Indiana rcaidcd in ;
the government
§ 82. "In pursiiancc of the same idea, Virginia proceeded, at
the same seaftion, to open her land-ofTice for the sale of that coun-
try which now conatitutca Kentucky, a country every aero of
which was then claimed and possessed by Indiana, who main-
tained thoir title with aa much persevering courage as was ever
manifested by any people.
j 88. "The States having within their chartered limits differ*
ent portions of territory covered by Indians, ceded that territ»ry,
generally, to the United States, on eondiliona expressed in their
deeds of cession, which demonatrate the opinion that they ceded
the soil as well as jurisdiction, and that in doing so they granted
a productive fund to the government of the Union. The lands
in controversy lay witliin the chartered limits of Virginia, and
wore ceded with the whole country northwest of the river Ohio,
This grant contained rc«crv»tions and stipiilatimis, which could
only be made by the owners of the soil; and concluded with a
stipulation, that 'all the lands In tlie ceded territory, not re-
served, should be considcned as acomiuou fund, fur the use and
benefit of such of the United States as have become, or ahall be-
CH. I.]
OEIOIN OP THB TTTLB TO TERSITOBT.
n
eom«, mombera of tbe eonMoratioo,' Ac, ' according to their
iniial rcftpcctiTo proportioiu in the general charge and Dxpendi-
tnrc, and iihall l>o faithfully and ton4 fide disposed of for that
purpoee, and for no other use or purpose v-hatsoeTCir. ' The ceded
territory wa« occupied by numerous and warlike tribes of In-
dian*; but the exclusive right of the United States to extinguish
their title, and to ^rant the soil, has never, we believe, been
doubted.
§ J4, "After these States became independent, a controversy
subsisted between them and Spain respecting boundary. Ity the
treaty of 1795, this controversy was adjusted, and Spain ceded
to the United States the territory in question. This territory,
tlioafch claimed by both nations, was chicfiy in the actual occo-
paticM) uf Indians.
§ 35. "llie m^i^ifieent purchase uf Louisiana was the pur-
chase from France of a country almost cutin-ly occupied by nu-
merous tribra uf Indians, who are in fnct inde^mndent. Yet,
any attempt of oUiers to intrude Into that euuntry would be
considered as an aggression which would justify war.
$ 3t>. " Our late acquisitions from Spain arc of the same char-
acter; and the negotiations which preceded those acquisitions
reoo^izu and elucidate the principle which has been received as
the foundation of all Kuropenn title in America.
§ 87. "The United States, then, have unequivocally acceded
to that forest and broad rule by which its civilixed inhabitants
now hold this country. Thoy hold, and assert in themselves,
the title by which it was acquired. They maintain, as all
others have maintained, that discovery gave an exclusive riglit
to extinguish the Indian title of occupancy, either by purchase
or by conquest ; an<l gave also a right to such a degree of sover-
eignty as the circumstances of the people would allow them to
exercise,
5 38. "The power now posseased by the government of the
United States U> grant lands resided, while we were colonics,
in the crown or its grantees. The validity of the titles given
by cither has never bven questioned in our courts. It has been
exercised uniformly over territory in possession of the Indians.
The exiKtcDCo of this power must negative the existence of any
right which nay conflict with and control it. An absolute title
to lands cannot exist, at the same time, in different persona, or
VOL. t. — 2
18 HISIOBT OF THB OOLONIB. [BOOK I.
ia different gDrenunents. An absolute must be an exclusive
title, or at least a title which excludes all others not compatible
irith it All our institutions recognize the absolute title of the
crown, subject onlj to the Indian right of occupancy, and rec-
c^ize the absolute title of the crown to extinguish that right
This is incompatible with an absolute and complete title in the
Indians. "
cu. u.j
OaiUIM AND BBTTLEHEKT OF rlBOUtU.
19
CHAPTEK II.
OBtGtN AKD SETTLEMEST OP TTBOIKU.
§ 89. Having thm traced out the origin of the title to the
Roil of America a88«rtfi(l by the Kiiropean natioiu, we may now
eiit«r upou a considtmtioi) of the manner in which the scttle-
meul« were made, and of the political constitutions by which the
various colonies were organized and governed.
§ 40. For a long time after the di»coveriea of Cnbot were
matif, England from various cauftea remained in a atate of indif-
ference or inactivity in respect to the territory thus subjected to
her away.' Nearly a century e]a)>sed before any effectual ;>lan
for planting any colony waa put into 0|)eratioR; and indeed the
ill success, nut to say entire failure, of the first expedition was
well cak-ulated to abate any mit!u« confidence in the value of such
uuterpritH.-s. In 1578, Sir Ilumphrcy Gilbert, having obtained
letters-patent from Queen Elizabeth,* granting him and his beira
any landa dist-overcd by hira, attempted a m^ttlement on the cold
and barren shores of Capo Breton and the adjacent regions, and
exhausted his fortune and lost bis life in the fruitless labor.'
The brilliant genius of Sir Walter Raleigh was captivated by the
allurements of any scheme which gave play to his romantie
temper; and unmindful of tlic dtBastruus fate of his half-
brother, or gathering fresh courage from the consciuiisncss of
difficulties, eagerly followed up tlw original plan under a new
patent fntm the crown.* To him we are indebted fur the first
plantations in the South;' and such wa« the splendor of the de-
scription of t)H> soil and climate and producliona of tliat region
given by tlie first adventurers, that Eliital^etli was proud to )>e-
stow upon it the name of Firytnio, and thus to connect it with
the reigo of a virgin Qiie«u.* But nutwithstnnding the bright
> KnbrrUon'ti Ameriia, B. S ; Doof. Summ. 110, ac
* 1 H«i. Call. !4.
* HnluiD'i Colon. IS. tS : BolMtna'* Amerfo^ B. 9.
* I Hue. Coll. 33 ; RotsttMB'* AmeriM, B. 9.
* 1 Ha. Onll. 39-10 ; S Dong. Bamaa. SSS.
■ Hand. Culoo. K; UobNtwa'* Anwrk^ B. 9.
20
■VIOBT OF TBB COLONIES.
[BOOK t.
prospects titofl held ont, three sucoesBiTo attempts under the aiw-
pioes of Raleigli ended in a ruinotM disaster, and seemed but &
presag« of the hard fate and darkened fortunes of that gallant
but nnfortunate ge-ntlenian. *
§ 41. llie tirat permanfiit settlement made in America under
the au8piir«8 of England was under a charter granted to 8ir
Thomas Gates and his associates by James the First, in the
fourth year after his accession to the throne of England' (in
160S). That charter granted to them the territories in America,
then commonly culled Virginia, lyin;^ on tne sea-coast bHween
the 34th and the 46th di'^rvi'^t of north latitude and the islands
adjacent within 100 miles, whicli were not belonging to or poe-
scjMod by any Christian prince or people. The associates were
divided into two companies, one of which was ri-quired to settle
between the S4th and 4l8t degrees of north latitude, and the other
between the 38th and 46lh degrees of north latitude, but not
within 100 miles of the prior colony. By degrees che name of
Virginia was confined to the first or soath colony.' The second
assumed the name of the Plymouth Company, from the n>sidene«|
of the original grantees; and New Plngland was fmmded under
their auspices.* Ir^ch colony had exclusive propriety in all the
territory within fifty miles from the first seat of their plantatloo.'
§ 42. ^xuQ of the provisions of this charter deserve a particu*
lar consideration from the light they throw upon the political
and civil condition of the persons who should become inhaliitantaj
of the colonies. The companies were authoriii?^) to engage
colonists any of the subjects of England who should Iw disp
to emiKrate. All persons being English subjects and inhabiting
in the culonicn, and every one of their children bom therein,
were declared to have and possess alt liberties, franchises, and'
immunities, within any other of the dominions of thn crown, to
all intents and purposes as if they hod been abiding and bom
within the malm of England, or any other duminions of ttiu
crown. The patentees were to bold the hinds, Ac, in Uie col-
ony, of the king, his heirs and suecessors, as of the manor of
East Greenwich in the county of Kent, in free and common
> RabfTtaon'a ABtrioi, B. ».
> llanh. CdUm. a ; 1 Hu. OM. lA ; Bobotwa'* Anerfaw. B. 9.
* 1 Bu. CWL W ; BobrnMii'i America, a B.
* RobtrtMn'a Anccio, B. S. - * 1 a«. CoU. w.
CH. If.]
OHIGIK INR SETTLEHENT OP TIBQIHIA.
21
socage only, narj not in eapitt; and were autliorixet] to grant the
same to tho inhabitants of the colonies, in such manut-r and form
and fur otiirh mtatea as tJie council of the culonj ahouM diruct.*
§ 4S. In reapcct to political i^rcmincnt, each culonr wua to
be ii^orcrnod by s lucul i^uiivJl, appointed and removuble at the
picuurc of the crown, according to tJic royal iuatructioiLS and
ordinances from time to time proinulgat«cL ThcM councils
wcro to l*e under t)w 8U)>erior management and direction of an-
other coimcil sitting in Ifngland. A power was given to expel
all intntdi^nt, and to lay a limited duty upon all [tcnwna traftirk<
ing wilii the colony; and a pnthibition was tnijKisod upon all
the coloniflta against trafficking with foreign countriea under the
pretraoe of tradn from the mother cwmtry to the colonies."
§ 44. The n>yal authority soon found a gratifying employment
in drawing up and establishing & code of fundamental regula*
tiona for these colonieB, in pursuance of the power reaened in
t}ic charter. X superintending council was created in England.
The Icgislatiro and csecntive powers were vested in the president
and councils of the colonics: but their ordinances were nut to
touch life nor limb, and were in subetanec to confurm to the
laws of ^igland, and were to continue in force only nntil made
Toid by the crown, or the council in England. Persona commit-
ting high ofTences were to bo sent to England for punishment;
and sobonlinate offences were to be punished nt the discretion of
the president and council. Allegiance to the crown was strictly
inaiated on; and the Church of England i-stabllBhcd.' Tlie royal
authority was in all respccta made paramount ; and the value of
politico) liberty was totally oi-crlooked, or deliberately diaregardod.
§ 45. The charter of the first or Virginia colony was aucccs-
sively altered in 1609 and 16112,* without any importiint change
in its aubstantial proviaions, as to the civil or political riglits of
^tbo oolunlHtH. It is surprising, indeed, that diarter* securing
.such vnttt |>ower8 to the crown, and such entire dependence on
tlio port of the emigrants, ahonld have found any favor in ll>e eyes
pithi*r of the pn>i>rietors or of the people. By placing the whole
legislative and executive powers in a council nominated by the
1 I Vu. ColL M : Ibnh. Oolw. «S. M : KobertHa'k kamim, B. *.
■ 1 Hu. CoIL EG ; ManlL Colon. 24.
• Hm»)i. f«1<>ii. 37. !S.
i 1 Hu. CM. es, 7ti ManL Cotcii. ii. iS. » ; Sobtrtaon's kmn. B. «.
22
HtSTOBr OP TUE COLO.trES.
[booe 1.
crown, and iruidod bj its instruutioaa, every person settling ia,
America seenu to have been beronrod of the noblest priviteg
of a fret! man. But withmit lieitittitiuu or ruliicbmce, the propri-.!
etors of both colonk-ii prepared to execute dieir respective pliinx;
and under the authority of a charter, which would now be re*
jected with disdaiu as a violent invasion of the sacred and in-
alienable rightit of liberty, the first permnneut »ettlenivnt« of ibe
fetgliflh in America were e8tabli»h<>d. From this |>eriod tJie
pro^rras of the two provinces of Virginia and New England)
(onna a regular and connected fttory. The fonner in the .South,
and the Utter in the North, may he considered as Die original
and parent colonies, in imitation of which, and under whoae aheU
ter, all the otheni have been succewively planted and reared.'
§46. Th« settlements in Virginia were carUeBt in point of
date, and were fast advancing under a policy whieh Hubdivided
the propt-rty among the settlers, insti'ad of retaining it in com-
mon, and thna gave vigor t<) private enlerprise. As thp colony
increased, the spirit of its inetnbers assumed more and more the
tone of independence; and they grew restless and impatient for
the privileges enjoyed under tJie gorenunent of their uativo
countr>-. To quiet this uncasinc«s, Sir George Teardley, then
the governor of the eolimy, in llilSl, called a general aimembly,
compOHcd of representatives from ihe various plantations in the
colony, and permitted them to ossiunc and exercise the high
functions of legislation.* Thus was formed and eslahtiahed the
first representative legislature lliat ever sat in America. And
this example of a domestic parliament to regulate all the inter-
nal concerns of the country was never lost sight of, but was e^'er
afterwards cherished throughout America, as the dearest birth-
right of freemen. So acceptable was it to the |M.>oplc and so
indispcnsabU* to the n>ai prosperity of the colony, th*>tt Ihe coun-
cil in Bugland wore rompn) led, in 1>>21, to issue an ordinance,
which gave it a complete and permanent sanction.* In imitation
of the constitution of the British Parliament, the legislative
power was lodged p«rlly in the governor, who held the place of
the sovereign; partly in a council of state named by the oom-
■ I qooU tha VMj vorda U Dr. RolwrfMa tluMigbMrt tUt pMMfs Tor Ut tfiiit mnd
gwnl tntk. BolxH. HbA. of Anwrio*. B. t.
■ R»bntMB'( AinericM, R. 9; Mwulu Oolan. eI:, 9, f. 51.
* BMnin^ 6W. Ill i Utitli'i Vlf|. Ap|>. Ko. 4, {>,«»: 1 Cliafan. Anmh. tL
CB.II.]
ORIOm AND BETTLEMEKT OF TIBGINIl.
ss
Qj; and purtl}- in na aMcmbljr coinpo«ed of reprcsontativet
freely cho«cn hy th« people. Bach breiivb of the Icf^isluturo
might decide by a majority of voices, and « iir^tivc waa reserved
to the governor. But no law was to be in force, though approved
by all three of the branches of the legislature, until it wan rati-
fied by a general court of the company, and rctitnicd under its
«e&l to the colony.* llic ordinance further required Uic general
■asembly, as also the eouncil of state, "to imitate and follow
the policy of the form ai government, laws, cttstoms, and man-
ner <A trial and other udminiatration of justiee uMed in the realm
of England, as near ss may he." The eondiict. of the colonists,
afl well as the company, soon afterwards gave olTence to King
James; and the disastern, which accomplished an alnrast total
destruction of the colony hy the «ucc«wiful inroads of the Indi-
ana, crested much discontent and disappointment among the pn>>
prietora at homo. The king found it no difticiilt matter to satisfy
the nation that an inquiry into thoir conduct was necesKary. It
was accordingly ordered; and the result of that inquiry, hy com-
missioners appointed by himself, was a demand on the part of
the crown of a surrender of the charters.' The demand wba re-
sisted by the cora|iiany; a 9119 itarrant^ was instituted against
them, and it terminated, as in that nge it might well be sup-
posed it would, in a judgment, pronounced in 16^ by jiidgea hold-
ing their offices during the king's pleasure, that the franchisee
were forfeited and the corporation should be dissolved.^
§ 47. It docs not appear that these proceedings, although they
have mot with severe rebuke in later times, attracted any indig-
nation or symixtthy for the sufTerers on this occasion. The royal
prerogative was then vii^wed without jealousy, if not with favor:
and tJie rights of Knglishmen were ill defined and ill protected
under a reign remarkable for no grout or noble objects. Dr.
Rolkertson lias nlxtprvod that the company, like all unprosperous
societies, fell unpitied;* and the nation were content to fnrget
the pro8ti«tion of private riglits, under the false encouragements
1 JMtnitoa'* AmtriM, B. 9 1 Mknk. CoIm. eh. 2. pt 6B ; 1 U*i. Calt. ISL
• In 14t3. See 1 Hu- OclL 1S5.
• lUbertKoi'i AiM(k% E «i 1 Uu. ColL l»i Ibnh. CoIm. cb. S, pp.«>, W;
C^dnun' Aanak.
• KaUrtion'i Anwrica, a ».
M
BISTORT OF TBS COLDNIEA.
[book I.
h«Id out of aid to the colony from the benignant efforts and
future coiinsftlH of the crown.
§ 48l With the fall of the charter the colony came undvr tho
immediate gioveramnnt and control of tho croim itsvlf; and the
kini; issued a spttcial commicution appointing a goTcmor and
twelve counsellors, to whom the entire direction of its affairs
was committed. I In this commission no rcprc«cntative asaembly
was mcntion«!d; and there is little roason to suppose that James
tlie First, who, bcstdos his arbitrary notions of KOVcmmoQl^ im*
puted the recent disasters to (hi^r c.\isk>iiix> of such an assi^mbly,
ever intended to revive it. WbiK^ ha was yet meditating upon a
plan or code of government, his doatli put an ejid to his projects,
which were better calculated U) nourish his own pride and con-
oeit, than to subserve the permanent interests of tho province,*
Henceforth, however, Virginia continued to be a royal province
until the period of the American Revolution.'
§ 49. Charles Che First adopted the notions and followed out
in its full extent the colonial system of hia father.* He doclarod
tho colony to be a part of the empire annexed to the crown, and
immediately subordinate U* its innsdiction. During the greater
part of bis reign, Vii^iuia knew no other law than the wilt of
tbe sovereign, or his delegated agenta ; and statutes were passed
Slid taxes inijMMcd without the slightest effort to convene a colo-
nial ssscmbly. It was not until Uio murmurs and complaints
which such a course of conduct was calculated to produce had
bctraypd Uic inhabitants into acts of open resistance to the gnr-
cmor, and into a firm demiind of rodretis from tltc crown against
his oppressions, tJiat the king was brought to more considerate
measures. He did not at once yield to their discontents; but
pressed, as he was, by acrero embarrassments at home, he was
content to adopt a policy which would conciliate the colony
and remove some of its junt complaints. He accordingly sooa
afterwards appointed Sir Wiliinm Berkeley governor, with pow-
ers and instructions which breathed a far more benign spirit
1 I R«t. C«fl. t»,
• Hmk. C»lun- ch. I pp. M. CI ; 1 Hu. Coa 18».
• 1 Bu. CoU. 2W, 1!S.
• It aean* Hat a durtn wm wbMqttFDtljr gtmnuA by Ohariw the 8«oa«d on t)>t
lOUt«f Oetotar, 1(76. bnl it oonuijieil littk nan than u arJutowleagMMt of lb*
I Dttonr M mo boBcdUt* dipMiilnrr of tbe ovwa. 9 Hami^ Sub W, US.
OH. II.]
OaiQlH kVD SETTLEMEKT OF riROl.VIA.
26
He wu ftntltoriKfd to proclaim, that in all its concenui, civil as
well as eccIrfliattliRal, the colony should be governed according
to the lawn of England. He was directed to issue writs for elect-'
ing repreaentatives of the people, who with tho governor and
council should form a grncrul mtscmbly clothed with snpreme
legislstire authority; and to Mtablish courts of justice, whono
prod'cdingH should bo guided bv the forms of tliu jHircnt country.
The rights uf Kiiglishmen were thus in a grcut mcusurc secured
to tbc colonist*; and under tho government of this excellent
listTiite, with some short intervals of intorruptiun, the cotonj
'flotirished with n vigorous growth for ulmost forty years.' The
revolution of 1688 found it, if not in the practical poBMsslon of
)i)>erty, at least with forms of goremment well calculated silently
to cherish its spirit.
§ do. llie laws of Virginia, during its colonial state, do not
exhibit as many marked deviations, in the general structure of
its institutionH and civil polity, from those of the parent countiy,
as tliofte in the Northern colonies. The common law was rec-
o^ize<d as the general basis of its jurisprudence; and the legis-
lature:, with some appcaruncc of boost, slated, soon after the
reetoratjon of ('harles the Second, that they bad "endeavored,
in all things, ae near as the capacity and constitution of this
country would admit, to adhere to tliosc oxccUeiit and often re-
fined laws of England, to which wc profess and acknowlodfcc all
due obedience and reverence"* The prevalence of the common
law was also expressly providctl for in all llie chartcnt succvs-
eively gmnled, as well as by tlio royal dijclaration. wlion the col-
ony was annexed aa a dependency to the crown. Indeed, there U
DO leason to suppose, that the common law was not in its leading
feature* very ac4!eptal>le to the colonists; and in its general
policy Ute colony closely followed in tho steps of tho mother
country. Among the earliest acta of the legiitlature we find tho
Church of England established as the only true church ; (a) and
1 BobotMo'ilBHiM, B. 9 ; Hudi. Armt. OoL «h. 2, pp. BIl, tit, note. I bvaaot
ll II r ty ts adnrt putkabriy to tba MM* «t dilng* dariag th» dMorbad
' pwiod of Ui* Comfliotivnltlt. H'nnin^ V!i;g. Stat Intn^ixtioii, pp. It; li,
* S HenoiBg, SM. 43. Sir WillUm Berktlc^, in kia umnr lo Um ijiwiliiiH tt Uio
I OcanfliHHonei^ la lt7l. " Cootnr? to tho Um of Ka^Mid, «« novar did, mt
fa) Jalhnon. Wotki^ I. M ; UU of of V. 8.. I. 30« ; Tcfntt a. ■hj\at, •
Ibiiioii br Bint, 1. tJ -, Buioruft, Ilirt. Cnack, ts.
26
HI8T0BY OP IHB C0L0XIE8.
[book I.
ita doctrines and discipline wero strictly enforced. All non-
conformials wvrc at lirst cumpclk-d to Iinltc tlio colonf, and a
spirit of perwMMition woa exemplified not fur behind the rigor of
the most zealotis of the Puritans. The clerf(>' of tlie EKtabUtthed
Cburvh were umplj' provided for by glebce aiid titbeis uud other
aids. Non-resideiico was prohibited, and a due perfonnance of
imrochial duties peremptorily required. 'Ilie laws, indeed, rc<
Bpe1^ting tlie church made a very pr^imtnent fignre during the
first fifty years of tlic colonial legialation. The first law allow-
ing toleration to Protestant dissenters was in thp year 1699, and
merely adopta that of the statute of the 1st William and Hary.
Subject to this, the Chnrch of fhigland seems to have maintained
an exchisive supremacy down to the period of the American
Revolution. Marriages, except in special cases, were required
to be celebrated in the parish church, and according to the rn-
bric in the common-prayer )>ook. The law of inheritance of the
parent coimtry was silently maintained down to the period of
the American Revolution; and the distribution of intratato es-
tatea was closely fashioned upon the same ^neral model. De-
vises also were regulated by the law of England ; ' and no colonial
statute appears to bare been made on that subject until 1748,
when one was enacted whicb contains a few deviations from it,
probalily arising from local circamataoces.* One of the roost
remaricable facts in the juridical history of the colony is its
steady attachment to entails. By an act passed in 1705, it was
provided that estates-tail should no longer be dockod by fines
or rooovories, but «>nly by an act of the legislature in each par-
ticular case. And though this was afterwards modifHM], so as to
allow entails to be destroyed in another mimner, wherw tlw es-
tate did anX exceed X30I) sterling in value,* yet the gi^nersl pul-
ley continued down to the American Revolution. In Uiis reapoct,
the teal of the colony to secnre entails and perpetuate inherit-
ances in the same family outstripped that of the parent country.
§51. At a very early period tho acknowledgment and registry
4an. to ask* >nj [ks] only Uii^ thai mamimt l»ad U gtvi Md lifil, siiIm wiUtia
tluM mcBtlui nTlfr Ux mnnjaBc* it b* (•ewilid'*
1 1 nlw apiD Uin» M^Nla to HMotng. Slit. la. in, 141. lUi, U5^ ISe^ SM^ MS,
ST7. »(i SHauSut. iS. M; S tloii. StaL 150, ITUt M(V 4U.
• 5 Hfamn^ 8uL «J4.
• S HniBia^ BW. no, SIS : 411m. flUL «»! ■ Bm. SttL (II i 1 'Dick. Bkdt.
ConuB. ifv-
en. n.]
OSIGrN AND RETTTLEIIEKT OF VIBCIMA.
27
of deeds and mort^gf^n of roal estate were provided for, nnd the
non-registry waa doemcd a badge of fraud.' The trinl by jury,
althouffb a privilege resuUmg from their genera! righta, -was
guunled by 8|)ecia) legislation. Thflre waa also an early declara-
tion, that no tuxM eould be levied by the governor without the
consont of the general unttembly ; and when raised, they were to
be applied necording to the appointment of the legialatare. The
biirgecscft aUo during their altcndunce npon the assembly were
free from arrest. In respect to domratic trade, a general free-
dom waa gitarant«ed to nil the inhabitantH to buy and sell to the
greatest advantage, and all ongnwuing was prubibitcd.* The
culture of tobacco seems to have been a constant object of solici-
tude; and il was encouraged by a long suecMsion of acts, suffi-
ciently evincing the public feeling, and the vuHt importance of
it to the prosjwrity of the colony." We leam from Sir William
Berkeley's answers to the Lords Cnmmissi oners, in 1671, that
the population of the colony was at that time about 40,000; that
tlic restrictions of the navigation act, cutting off all trade with
foreign countries, were very injurious to them, as they were
obedient to the laws. And "thia," aays he, "is the cause why
no small or great vessels are built here; for we are mostobodlent
to all laws, whilst the New Knglnnd men break tiirough, and
men trade to any place that their interest leads thcui." This
language is sufficiently significant of the restlessness of New Eng-
land under these restraints upon its commerce. But his answer
to the question rMpecting religious and other instuction in the
colony, would in our times create universal astonishment. "I
thank God," says he, "there are no frte tehwls nor prnding;
and I hope we shall not have Ihetie hundred years; for learning
has brought disobedience and heresy and sects into the world,
and printing has divulged them and libels against the beat gov-
ernment Ood keep us from both."* In 1680 s remarksble
ehnngc was made in the colonial jurisprudence, by taking all
judicial power from the assembly, and allowing an appeal from
the judgments of the General Court to the King in Council."
■ 1 lIuiniD^ aui. 24S; 3 11m. Sut. U ; S Hta. Stat. S21.
■ 1 Hmntnc iUiL SMi.
■ 8m 1 H«- 8UL lSS.tai] lnd«>. 10. Totacco, la th«t*nil tlMNbwqwatnihiMN;
BB*n. Stat. SI 4.
• t Hen. 8UL Ml. 51S. SU. S17 1 1 Clialm. Aniub, SSS ; S Hatch. Colteet. 4H.
* Xmk. Calm. cb. A, p. 1«3 1 1 CUIm. AnDal*^ MS.
26
HISTOBY OP THE COLOKIEB.
[BOOK I.
CHAPTER HI.
ORICIX A!tD BRTTLiaiiafT OP KCW BKGLANtK
§ 52. We may niiw iidwrt in ft lirief manner to the hintoiy of
the Nurtltcni ur I'ljmoutli Company. That company puesesacd
fcwiT i\-»o«rcf8 ami le** enterprinc than the Soutiiem ; and though
allied by meu of high dintinction, snd among others by the pub-
lic spirit and k«at of Lord Chief Justice I'upluuo, itit first efforts
for colonization were feeble and diacouraiting. Captain John
Smith, so well kno«-n in the history of Vii-jrinia by bis successfat
adventurcfl under tbcir authority, loot a transient loistre to thvir
att^'mpta; and his warm dcscriptioiia of the beauty and fertility
of the country procured for it from the excited imaiiinutJoii of
the Prince, afterwards King Charles th« First, ttw (Utt«riug
name of Nfte Ettffland, a ituinc which effaced from it that of Vir-
ginia, and which has since become dear beyond expression to the
inhabitants of ita harsh but aulubrious climate^
§ 58. While the company was yet languishinff, an event oc-
curred which gave a new and anexpected aspect to its proapeols.
It is well known tluit the R-lifrious diMCtuions coQaoqucnt upon
the Rcfonnalion, wbilv Uiey led to a mort bold and free spirit of
disciuistou, failed at the aame time of introducing a corresponding
diarily for differences of religious opinion. Kach aucccssivQ
Beet entertained not the slightest doubt of itji un-n infallibility in
doctrine and woiahip, and was eager to obtain proselytes, and
denounce the nrrors of ita opponents. If it hod stopped bcre, we
might have forgotten, in admiration of the einc«ro jgcal for Chris-
tian troth, the desire of power, and Ibc pride of mind, which
lurked within the inner folds of their devotion. But, unfortu-
nately, the spirit of intolerance was abroad, in all ila stem and
unrelenting severity. To tolerate errors was to sarrifice Otris-
tianity to mere temporal interests. Tnith. and truth alone, was
to be followed at the haxard of all coaseqoencea ; and religion
1 ItobHtaM'a AnnJn, B. 10: Kink. Amm~ fM, A. i. ff. 77. 78 ; 1 Hm. CuIL
CO. III.]
SBTTLEMEKT OP NOT EXQLAMD.
S9
allowed no comprtnnisus between conBcience and worldly com-
forts. Uvrtsy V.-Q8 il«cU a sin of a deadly nature, and to extir-
lj*tc it wu« a [irimary duty of all who were believers in sincerity
and truth. IVrdccutioti, thoreforv, even when it seemed most
to violate the fuclinga of humanity and the rights of private
judgment, never wantvd apologista among those of the purest
and most devuiit lives. It waa too often received with acclama*
tioiia by the vrowd, and fouud an ample vindication from the
learned ajid the dogmatists ; from the policy of the civil majj^s-
trate, and tlic blind zkuI of tJio ecvleaiastic. Each itcct, aa it
attained power, exhiUtvd the same unrelenting finnnesa in put-
ting down its adversaries.' The papist and the prelate, the Puri-
tan and the Prcsbytcriun, felt no oompum-tiuns iu the destruction
of disaentienls from their own faith. They uttered, indi'^-d, loud
complaints of the injustice of their enemies, when tlioy were
tfaenMclvea oppriMsod; but it waa not from any nlihorrence to
{wrsccution itrndf, but of the infamoiia errors of tlie pontecutnrs.
Tliere ai-e not wantinn^ on the rccorda of the history of these
tiincM abundant proofs, how easily 8ccl«, which had liorne every
human calamity with unshrinking fortitude for coiiscienoe'sake,
coutd tuni u])on tJicir inoffensive, but, in their judgment, erring
neighbors with a like infliction of suffering.* Even adversity
sometimes fails of producing ita usiuil salutary elTecIa of modcra*
lion and compaaaion, when a blind but lioiK«t seal has usurped
dominion over the mind. If such a picture of human iiiHrmity
may justly add to our humility, it may also serve to admonish
us of the Christian duty of forbearance. And he who can look
with an eye of exclusive censure on such scenes, must have for*
gotten how many brigtit examples they have afforded of the lire*
> I>r. Robntaaa bia jxtly obMrrML that nM onljr iIid idea of lulinlioii, but arvn
(hn •ofd tadt in th« Mur new afflxcil lo H, ww lli*n nnkmrnn." Sir JmntB Uicitin.
(»)■. • nAimwiiwlIr IC^'ioiu la jwllrMl uid otMod pidlOMphjr, hunnmriceil, ttat tki*
Riint nil (the ■iipiimniua of thn rt|tlil of prim* JndgnMit fo iMtt«n ot Ml%iDo| lutd
mtfml « moftnl »a(ui<l Irom tMthn. w)k^ in bU wtrhi« with Koni*, had Jinwk ft
Un aguiul ■)] litiiMnaatliorily, «n<l mwwuriawW^dLMtMidtowMiltittd ttnl Ih*y wan
ntitlnl. or nthtt bovnil, to ronii 411J attw thair nwn ofiMma, uiil meat «f all, oa tlM
WMl 4njAy Uitn«(Ulig nlbjetti. Difurtatiim on tin Pngrat tf Etkieat PkUotefltlf
(PkiW tS33). |i. M.
* Rolartooa ■ Amnic^ B. 10 ; 1 B«ikn«p'* Now tlRnpdbif*. ch. S i 1 CUm. Aa-
Bali, n- "*■ >*>• >^ KO' 1B0> 1S> • 3 1><»«I^ HiA Coll. t2. ,
■ Tlie «keb {wng* dcMrrw connMndatiMl hi it) mb«lto iplrlt. BobtrUoa'* ABiria,
B.IS.
so
mSTORY OF TUB COLONIB).
[book I.
liest Tirtao, the most pcnsuuire fidelity, and the moat exalted
piety.
§ 54. Among othcni who suffered pereiMnitionH from t)ie liau^ity
teal of Eliuibcth, was a small sect called, from the imiiic uf ibeir
leader, lirovnists, to whom we owe the foundation of the now
wideHpread Boct of ConfrregatinnalJHts or IndcpendentA. After
sufferings of an aggravated nature, the/ were compelled to take
refuge in Holland, under the care of their (tastor, Hr. John Rob-
inson, a man distinguiehcd for hia pioty, his benovolenee, and his
intrepid spirit.' After remaining there aomo years, tbey con-
cluded to emigrate to America, in the hope that they might thus
perpetuate their reltp:ious diBcipltno, and prt-servc the purity gf
SQ apostolical church.' In conjunction with other friendii in
England, they embarked on the voyage with a design of Mcttlo-
ment on Hudson's Rircr'in New York. But, against their inlen- 1
tiun, they were compellL-d to land on the shurvs of Cape Cod, in
the depth of winter, and the place of their landing wax called
Plymouth, which lias since become so celebrated as the first per-
manent s^-ttlemcnt in New England.* Not luivlng contemplated
any pluutation at this plaoe^ tlioyliad not taken the precaution to
obtain any charter from the Plymouth Company. Tlte original
plan of their colony, however, is still preserved;* and it waa
founded upon the biutis of a community of properly, at least for
a given space of time, a scheme, as the event showed, utterly in-
compatible with the existence of any lai^ and flnurishing col-
ony. Before tlieir landing, tliey drew up and signed a voluntary
oompaot of goTcrnnient, forming, if not the first, at least the
best authenticated case of an original 84>rial contract for Iho es-
tablisliRient of a nation which is to )>e found in the anoals of the
world. Philosophers and jurist have perpetually rcAorted to the
theory of Hueh a compact, by which to measure tlie rights and
duties of )*overnmenta and subjecta; but for the mniit part it has
been treated as an effort of imagination, unaufltained by the his-
tory or practice of nationa, and furnishing little of solid instruc-
tion for the actual conoems of life. It was little dreamed o^
■ Utlkaap'* }!*w IlaBtpliln, ck. 9 j I De«g. Samin. 3N.
■ Mortra'* Htm. 1 la M.
* RobcttaM'* Amarios B. 10 ; UusU. Amrr, Col. di. >, pp. TV. 80 i Uortoa'* He*.
SI to 31.
* 1 tlM. OdO. 87, 86 : Uorton't item. Ai>p. 8T3.
CH. in.]
SOTLKafBHT OF KBW CKOLAKD.
81
that America Bhoutd furnish ui example of it in primitire and
almost patriarchal sitnjilicity.
§ 65. On the 11th of November, 1620, tliese humble but fear-
lens adventurers, I>efore their landing, drew up and si^ed an
ori^nal compact, in which, after adinowled^ng themselvra sub-
jects of the cros-n uf England, tbcj- proceed to declare: " Having
undertaken, for the k'*'^ *>' '^*>*^ "^^ ^^'^ adi-ancement of the
Christian faith and th« honor of our king and country, a voyage
to plant the lirst oolony in the northern purta of Virginia, we do
by thcise praicnt« solemnly and mutually, in the prracncc of God
and of one uooUivr, covenant and combine ourselvcx together
into a civil body politic, for our better ordcrinji and presorva-
tion and fnrlhiTuncv of the vnia ufureaiiid. And by virtue hereof
do enact, cuuHtitiiti*, and frame sucli just and equal laws, ordi-
uanocfl, acts, constitutions, and ofliocrs from tim« to time as shall
be thought most meet and eonvenit^-nt for the general good of tlio
eoIoDy; unto which we promiae all due subniissioQ and obedi-
ence." This is the whole of the compact, and it was signed by
forty-one persons.' It is in its very essenre a pure demooracy;
and in pursuance of it the colonists proceeded soon afterwords
to organiie the colonial government, under the name of the Col-
ony of New Plymouth, to appoint a governor and other oOiccrv,
and to enact laws. I'ho governor was chosen annually by tbo
freemen, and had at first one assistant to aid him in the dis-
diarge of his tnist.' Four others were soon afterwards added,
and finally the numl>er was increased to seven.* 'Hie supreme
legislative power resided in, and was exercised by, the whole
body of the male inhabitants, every freeman, who was a member
of the church, being admitted to vote in all public affairs.*
The number of settlements having increased, and being at a con-
siderable distance from each other, a house uf representatives
was cstabliuhed in 1G89;' the mombcra of whiclj, as well as all
other ofl'iL-uni, were annually chunen. Tla'y adopted the common
law uf England as the general basis of their jurisprudence, vary-
> 1 lUx. CoH. lie ; Uonon't H««i. 87 ; VlanL. Colon, ch. S, p. 80 i Bobertioa'*
Avcrica, B. 10; S Hutob. Hid. 4S9.
• PlyiiM-atb Lam (1685) i 1 IUl Coll. <0(, itO.
• UotUm'm Uti». Ufti PriMo'* AiiMali, SIS ; 1 llntoh. HiaL MS. «& ; 1 Hm. CoU.
4M, MS. til. Ill
« BabwtHm'■Aln«rio^B. l»;S[Ulcfc.UiiUlflTi 1 Uu. ColL MB, 411, 419, ill.
• S BnUh. HUt. 463.
88
HI8T0BY OP THE
[book t.
ing it however from time to time by miinicip*! rcgnlfttioiw better
adapted to their situation, or conforming more exactly to tlieir
stem Dotions of the ultfloluto authority and nnivereal obligation
of tJie Mosaic institutiona. '
$ ^6. The Plymouth coloniBta acted, at first, altogether under
the voluntary compact and aasociation already mentioned. Hut
they daily felt embarrassments from the want of some general
authority, derived directly or indirectly from the ci-owu, which
ohould recognize their avttlement and confirm their lefi^slation.
After Heveral inefTectual attumfitK madu for this purpoae, they
at length aucccedL-d in obtaining, in January, 1629, a patent
frum the council estubliiihed at Plymouth, iu Euffland, under the
charter of King James of It^SO." This pot«nt, bitiidcs a grunt of
the territory upon the terms and tenure of the original patent of
1620, includod an authority to the pat«nloc (William Bradford)
and hi» uiwuciatea, "to incorporate by some usual or fit name
and titlu him or themsvlvi-s, or the people (ticro inhabiting
under him or them, and their aucocssora, from time to time, to
frame and make urdcn, unliiutnccs, and conalitutioita, as well
(or the better government of their affairs here, and the receiving
Of admitting any into his or their society, as also for the better
gov-ernmcnt of his or their people, or his or their people at sea
in going thither or returning from Uience ; and the same to put
oreaose to be put in execution, by such officers and ministers,
M he or they shall authorize and depute; provided, that the
said laws and orders be not repugnant to the laws of I^nglond
or the frame of government by the said president and council [erf
Plymouth Company] hereafter to bo establiahed."*
§ 57. This patent or charter scema never to have been con-
firmed by the crown;* and the cotonista were never, by any act
of the crown, created a body politic and corporate with any I&-
gislativc power*. They, therefore, remainod ia lejjal contempla-
tion a mere voluntary association, exercising the highest powers
■ RobcrtMu'* AMuk*. B. 10 : 3 llntdi. Hut t6% 443, tCt ; Bulibanl'* HiU. dk VK
p. 9% ; iCIulMM'i AdmIi, BS.
■ SHMck. Hlu.««4, 4T8;inu.ODlLS*S,4H**>;lClttlnKn'«AiiiHlK«T,Wi
1 Rolin«i'* Aniwis SOI.
• t ItM. OAL 39«. (04.
* ChalnHin Myt (1 Clialm. AdiibU >7) tlut "Uiit pfttcst niMt oenSfuad bjrtk*
H««a, IfaoDfli Uir eDtitnr; fau twvn ■Otmal bjr tb* eohmkl Uttoriuu." 8n alto
Hurii. HiU. Uoloa. ch. S, pp. 83, 8S.
CB. m.]
PLTMODTH COLOMT LAWS.
88
uid prcrog«UvM of sovereignty, and yielding obedieiUK to tbe
laws nnd miigistrates citosen by themaelvee. *
§ 66. The charter of li>2y furnishod them, however, with the
color of delegated sorercigiity, of which they did not fail to nvail
themselves. They asKiiiiied under it the exoi-cise of the mo«t
plenary executive, legislative, and judicial powers, witli hut a mo-
mentary scrD|)le aa to their right to inflict ca|)ital punish menta' (a)
They were not disturbed in the free exercise of these powers,
either through the ignorance or the connivajice of the crown,
until after the restoration of CharK>s tJie Second. Their anthor-
ity under their charter waa then qucationed ; and several unsuc-
cessful attvmpta were made to procure a confinnatiun from Iho
crown. They continued to elin^ to it,, imtil, in the general ship-
wreck of cliarU-r8 in lt>84, theirs was ovt^rtumcd. An arbitrary
govemnient was then established over them in common with tho
other New England colonics; and they n-erc Anally incurjKiratcd
into a province with Maasachtnctts, under the charter granted
to the latter by William and Mary in 1G91.
§ ii'X It may not lie without nae to notice a few of the laws
which fonned what may properly bo doomed the fundamentals of
their jurisprudence;. After providli^ for the manner of cliooa*
ing their gfivemor and legislature, as above stated, their first
attention seems to have been directed to the establishment of
"the free liberties of the free-bom people of England." It waa
therefore declared,* almost in the language of Magna Charta,
that justice should l)e impartially administered unto all, not
sold, or denied ; that no person should suffer " in respect to life,
limli, liberty, good name, or estate, but by virtue or equity of
some express law of tlie General Court, or the good and equita-
ble lawn of mir nation suitable for ua, in matters which are of a
civil nature (as by the court here hath been accustomed), wherein
WD have no particular law of our own i" and none should suffer
without Iwing brought to answer by due course and process of
law; that in criminal and civil cases there should bo a trial by
* llunh. Ilitl. Colon, fk. S, {X U ; I Clwlin. Aniuli, t7, 8S. 01.
■ : tlaub. HIiL 4M. W5, 447 ; 1 Chklni. Anittli, U.
* S Hatdi. Ititt. 47*. 180 ; I Chdui. AnnaU, W. M.
* ]b KS6. Sm 1 Hu. ColL tOI. «0<S ; Id. ITS ; nymauUi Colouj L*wi («dlt.
ia«)i inu.Ccd. 111,111.419.
V0I_ 1. — 8
(«) UltKf. UiM. of Xc« Ed^iI. L Ml
u
HISTORY OP THK OOLONIKS.
[book I.
jurj at all events upon a final trial on appeal, with the right to
chalk'ngv for just caune ; and iu capital cases a peramptorjr right
to chullciigv twontj jurors aa iu &igland ; that uo |>arty should
he cast or condemned, unless upon the testimony of two suffi-
cient vitncsflcs, or other sufTiciL-ut cvidracu or circumstances,
unless otlicrwinc sjiccially provided hjr law; that nil persona of
the age of twciitj'-onc years, and of sotuid mcmorv, should have
power to make wills and other lawful alienations of their C8tnt«,
whether they vere condemned or excommunicated, or oth«r ; cx>
ccpl that in treason tltcir personal cstaUt sliould be forfeited, but
their real estate was still to be nt their disposal. All processes
were directed to be in the king's nniue.' All trials in respect
to land were to be in tlie county where it lay; and all ftonional
actions where one of the particfl lived; and lands and t^^ooda were
liable to attachment to answer the judgment rendered in any
action. All lands wore to descend according to the free tenure
of lands of Kast Greenwich, in tho county of Kent; and all en-
tailed lands actwrdiug to the law of England. All the sons were
to inherit equally, except the eldest, who was to have a double
share. If there were no sons, all tJic daughters were to inherit
alike. Brothers of the whole blood were to inherit; and if none,
then sisters of the whole blood. All couveyaocM of land were
to bo by deed only, acknowledged before some magistrate, and
recorded in the public reoonls. Among capital offences wcrt
enumerated, without any discrimination, idolatry, blasphemy^
treason, murder, witchcraft, bestiality, sodomy, false witness,
man-stealing, cursing or smiting father or mother, rape, wilful
burning of bouses and ships, and piracy; white certain other
ofTences of a nature quite as immoral and injurious to society,
received a far more moderate punishment. Undoubtedly a rev-
erential re^rd for the Scriptures placed the crimes of idolatry,
blasphemy, and false witness, and cursing and smiling father
and mother, among the capital offcnova. AaA, an might well be
presumed from the religions sentiments of the people, ample pro-
tection was given to the church; and the maintenance of a
public ortliodox ministry and of public schools was carefully
provided for.*
> I llu. Coll. 473 ; nrnio«th Colonr !.««« (l«U\. p. IS.
* UoM MBplc JRifNinMiaa apoa *II IhoB aubjocu will bn titrtilihvd bf wi
CH. m.] FLTHODTH OOLONT UWB. 86
§ 60. Ccnnpared vitli the legislation of some of the colonies
during an equal period, the lavs of the Plymoutli Colony will be
found few and brief. This resulted in some measure from the
narrow limits of the population and business of the colon; ; but
in a greater measure from their reliance in their simple proceed-
ings upon the general principles of the common law.
86
BISTOSY OP THE COLONlCa.
[BOOKL
CHAPTER IV.
HiSMCiiusFrrs.
§ 61. About the period when the Pljinonth colonist*
pleted their voyage {lli20), James iho First, with a view to pr
mote more effectually the interests of the second or northern
eompany, grant<?d ' to tJie Duke of Lenox and others of tlie com-
pany a new charter, by which ita territories were extended in
breadth from the 40th to the 48th degree of north latitude ; and
in length by all the breadth aforcaaid throughout the mainland
from sea to aca, excluding, however, alt poMseMion of any other'
ChriBtiun prince, and all lands within the bounds of the sonthera
colony.' To the territory thus bounded he aflixed the name of
New England, and to the corporation itself so created the namo
of "The Council catablisbed at Plymouth in the county of Devon,
for the planting, ruling, ordering, and governing of New Eng-
land in America.'*' The charter contains the names of the per-
sons who were to constitute the first council, with power to fill
vacancies and keep up a perpetual succcssttm of counaollors to
the numlicr of forty. The power to purchase, hold, and sell
lands, and other usual powers of corporations, arc tlion conferred
on them, and i«pecial authority to make laws and ordinances to
regulate the admission and trade of all persons with the planta-i
tjon ; to dispone of tlieir lands ; to appoint and remove govertionl
and other ofTicers of the plantation; to establisli oil manner of
orders, laws and directions, inatruotions, forms and cercinonica,
of government and magistracy, ao that the same be not contrary'
to the laws and statutes of England ; to correct, pimish, pardon,
govern, and ruto all inliabitants of the colony by such laws and,
ordinances, and in defect thereof, In cases of necessity, accord-
ing to the good discretions of their governors and officers respec-
tively, aa well in cases capital and Criminal as civil, both marine
and others, so always that the same ordinances and procevdinga
1 Nor. I, leSO : 1 Doag. Siunm. 144, *c
< 1 nu. CtdL 103, IDS. *«
■ I Bu. CoU. M, 103, IM. 110, 111.
CB. IT.]
HAS^tACUUSKm.
87
be, tui near as conveniently may be, agreeable to the lawa, stftt-
utes, goveroment, and policy of England ; and Unally to regulate
trade and traffic to and from the colony, prohibiting tlio aame to
all persons not liccowxi by the corpor*tion. * Tlic charter fur-
ther containa some extraordinary powers in cases ol rebelliun,
mutiny, miacoaduet, illicit trade, and hostile invasions, which
it ifl not necesaary to partictilarir«. The charter also doclarra
that all the territory shall be holden of the cmwn, as of the royal
manor of East (Ireenwich, in Kent County, in free and common
aocajnt, and not m capiU, nor by knight semce;* and that all
Bub|cet8, inhahitanta of the plantation, and their cliildren and
poatcrity born within the limits thereof, shall have and enjoy all
liberties and franchises and iinmmiities of free denizens and
natural aubjijcta witJiin any other of the dominions of the crown,
to all iatcnta and purposes as if Uicy had been abiding and bora
within the kingdom of England, or any other dominions of the
crown.* T]]e charter also authorized the council to transport to
the plantation any subjects, or strangers who were willing to bc-
eomo subjects and live under the king's allegiance. Kut it prtn
hibiled papists to be transported, by requiring all persons going
there to take the oath of supremacy, and authorising the presi-
dent of the council to administer the oath.*
§ 62. Home of the powers granted by thia charter were alarm-
ing to many persona, and eepccially those which granted a
monopoly of trade.* The efforts to aettle a colony within the
territory were again renewed, and again were unsuccessful.*
The spirit of rcVigion, however, aoon effected what the spirit of
commerce had failed to accomplisfL The Furitiins, persecut^^d
at home, and groaning under tlic weight of spiritual bondage,
cast a longinL'- eye towards .America as an ultimate retreat for
themselvea and their children. They were encouraged by the
infomiatioii that the colonists at Plymouth were allowed to wor-
ship Iheir Creator according to the dictates of their coiuicicncea,
wjtliout- molestation. They o])ened a negotiation, through the
instrumentality of a Air. Whitc^ a distinguished iiou-c(Hi>foniutig
> I Hu. OolL toa. 110, us, 11*, Ul.
■ lUd. 111.
* llrid. 117.
* Hanh. ColoD. cli. S, p. S3 ; 1 Qaba.
* Bobtftsmi'i Aia*ri««. B. 1» i 1 CUlm.
» Ibid. iir.
81,88.
Ml
SB HISTORY or THE COLOMBS. [BOOK I.
mtniator, with the council established tt Pljmocth; and ia
March, 1627, procured from th«m a grant, to Sir Henry Rum-
L veil and otbera, nf alt tlml {mrt of Xew Entrlond Ifin^ throe
F iniles Boutb of Charlra River and three miles nurth of Merrimack
Rn'er, extending from the Atlantle to the South Sea.'
§ fiS. 0(her pernons were 8oon inducted to unit* with them, if
a charter could l>e procured from the croHti which should secure
to the adventurera tJic usual powers of govenunent Application
I was made for this purpose to King Charles, who accordingly, in
'March, XGi"^ tinted to the grantees and thoir asAociates the
most ample powers of govcmmeat. Tlte charter conlimit-d to
tlirm the torritury already granted bv the council est&blishod at
Plymouth, to be holden of tlie crown, as of the rojat manor of East
Gn-cnwich, " in free and commoD socage, and not in eapiie, nor
|b.v knight's service, yielding to the crown one lifth port of all oi«
of (told and silver," *c, with the exoeption, however, of any part
of the territory actually posnessed or inhabited by any other Chris-
tian prince or state, or of any part of it within the boundn of the
g<>nlli<-nt colony (of Viriiinia) granted by King James, it aUto
ort'iilvd Uio BBSociatfs a body politic by the name of "The Gov-
omor and Coin|mny of the Massachusetts Bay in Xew England,"
with Ih" nutml powpra of corporations. It provided that the gov-
eniMii'nt should be administered by a gn\'emor, a dcputy-guv-
ornor, and eighteen assistants, from time to time elected out of
ihn rrrrnicn nf the company, which ofRcers should hare the caro
of the grneral businesa and alfain of the lands and plantations,
and the tuivi-mment of the people there; and it appointed the
Wrat govi«riior, deputy-governor, and assistants by name. It fur-
thiT providi-d that a court or quorum for the transaction of buai-
liiiiH alhiuld eonxist of the governor, or the deputy-governor, and
§f\\n\ or nion< assintants, which should assemble as often as once
H tiitiulh for that purpoiie. and also that four great general asscm-
MU'* III i|it< iMiuipMuy should bu held in erftry year. In these
|lvit( ami Huuiu'itl tiNai'mbliM (which were oompoaed of the gov-
.< .1 >. iiMUliitila, and froomcn present), freemen were to
(. mti III Oiti ivuiipimy, ofliccre were to be oli-cted, and
Una wd (trdluuiiiHia fur Iho k<)<kI »id welfare of the colony made ;
i "VhaM u« uiik llw Jm^i-II** tanU of ib» Kntnl. but ■ >uiiBin«Qt of Um MbclBBca
.iT>l III 111* uhwtar la lliitehUMin'* CnltBcdon, p. 1, Ac ud in
... Uo* i>r llMiriiairtK jtiaM tn ItlL
CH. IV.]
JIA8SACHUSBTTS,
69
"bo as Buch lawn and ordinances l>o not contrarj or repugnant to
the Uws and statutes of tliiH our rcului of Enelait^- " At one of
tJteso great and Rvncral aftsi->mbllc(i hi-ld in En^tor Term, the gov-
ernor, dvputy, and (utaiatants, and oth«r utTioora wi-rc to be annn-
ally chosen bj- the cotnpaiiy prcMUt The com[»any were further
nuthoriiM.'d to Iransport onjr subjc-ctD or strniigcm willing to be-
come subjvvtH uf the crown to tlic colony, and to carry on trade to
and from it, without custom or subaldy for hcfcd yeani, and wore
to be free of all taxation of imports or exports to and from the
Enjrlish dominion for the spnoc of twenty-oiip years, with the
exception of a five ]>er c«iit duty. The charter further provid«d
that all subjects of the crown who should lieoome inhabitants,
and their children )>oni there, or on the seas Roing or returnintr,
sh'juld enjoy nil liUtrties rind immunities of free and nattirni
HulijectA, 08 if they and every of thcin were born within the realm
of Kngland. Full Iff^olnlive authority was also fpren, subject
to the reatrirtiitn of not being contrary to the laws of England,
as also for the imposition of fines and mulcts "according to th«
eourse of other enrporatinns in England."' Ma^hother prorf*
sions were added, Bimilar in substance to thoflWound id the
antecedent colonial charters of the crown.
§ M. Such were the original limits of the colony of Maaaachu-
sett* Buy, and such were the jtriu-ers and [irivilem-s conferred on
It. It is olMcrrable that the whole structure of the charter pre-
sup]>08c« the residence of the rompany in England, and the tniis-
action of all its business there. The experience of tlio [mst had
not sufficiently instructed the adventurers that scltlements in
America could not be well governed by corpomtiuns resident
abroad;^ or if any of them had arrived at such a conclusion,
there were many reasons for presuming tJiat the crown would b«
jealons of granting jxiwers of so large a natnro, which were to bo
exercised at such a distnnoo as would render conti-ol or responsi-
Inlily over them wholly Tlsionary. They were content, there-
fore, to got what they could, hoping that the future might
furnish more ample opport4initie« for siiccest) ; that their usurpa-
tions of authority vould not lie closely watched; or that tliere
might be a silent indulgence, until the policy of the crowu might
(eel it ft duty to yield, what it waa now useless to contend for,
* llnub. Coll. pp. l-ia ; 1 Hat. Coll. SSB ; 1 Cliilni. Annalt, 1ST.
■ I CUm. AaaiK » : RoImUmii'* nUt. Anurioo. B. 10.
88
nreron' op the ooi/nam.
[book [.
in)nist«r, with the council established at Plymouth; and in
March, 1627, procured from tJiein a frrant, to Sir Hoiiry Roaie-
well and others, of all that part of New England lyi»i; three
miles soath of Charlen River and thn>« miles north of Merrimack
River, extending fi-om the Atlantic to the South Sea.'
g 68. Other persona were soon induced to unite witJi them, if
a charter could l>e procured from the crown which ^hoiitd secure
to the adventurers the uaual powers of government Application
vrm made for this purpose to King Charlm, who accordingly, ia
March, 1628, grantod to the grantees and their as<iociate6 the
moat ample powers of government, T)m charter conlimied to
them the territory already granted by the council established at
Plymouth, to be holdcn of the crown, an of (he royal manor of East
Greenwich, "in free and common socage, and not in capite, nor
by knigfat*8 serried, yielding to the crown one fifth part of all ore
of gold and silver," Vfec, with the exception, however, of any part
of the territory actually [(Oaaesacd or inhabited by any other Cbris-
f ian prince or state, or of any part of It within the hounds of the
southern colony {of Virginia) granted by King James. It also
created the associates a body |>olitic by the name of "Tlic Got-
emor and Company of the MsMachusctts Bar in New England,"
with the usual powers of corporations. It provided that the gov-
ernment should be administered by a gorcmor, a doputy-gov-
emor, and eighteen assistants, from time to time elected out of
tlie freemen of the company, which offiecrs should hare the care
of the general business and affairs of the lands and plantations,
and the government of the people there; and it appointed the
first governor, deputy-governor, and asaiatanta by name. It fur-
ther provided that a court or quorum for the transaction of buai-
ul-ss should consist of the governor, or the deputy-govcmor, and
aeven or more assistants, which should assemble aa often as cmoo
a month for that )>ur|X)se, and also that four great general assem-
blies of the company should l>e held in every year. In th«M
great and general aasemblies (which were composed of the gor<
ernor, deputy, aasistants, and freemen prwtent), freemen were to
be admitted free of the company, officera were to l>e elected, and
laws and ordinances for the good and welfare of the colony made;
1 Thew uc not IliB lUuriptiva vonti of tb* gnn\, but % *UUn»«at at th« niMuta*
of it. TW gnnt li rtdtol in Uin charter In Hntdiinaon'i CnUMtion, p. 1, An. and ia
^a Oolonul aiul PiwrtDO* U<n oT TJMMiihwwIlii. printed tn ISlt.
CH. IT.]
HASHACHUSrTTS.
89
**M M «nch lawR and ordinanceB be not contrary or repugnant to
the lawit and stattiten of thia our realm of England. " At one of
these great and general assemblies held in Easter Term, the gor*
emor, deputv, and assistants, and other olTiwrs wore to be annu-
ally chosen by the company preafnt Tbe company were further
authorized to transport any subjects or strsugvra willing to be-
come subjects of the crou-n to the colony, and to carry on trade to
a]]d from it, without custom or subsidy for aeven years, and were
to be free of all tAxation of imports or exports to and from the
English dominion for the space of twenty-one }'ears, with the
exception of a five per cent duty. The charter further provided
that all subjects of the crown who should Ijecomc inhabitants,
and tlicir children born then-, or on the seas goinir or returning,
should enjoy all liberties and immunities of free and natural
siiljjccts, as if they and cx-cry of tlicin were born within the realm
of England. Full lo^elative authority was also given, subject
to the restriction of not being contrary to the laws of England,
as also for the tmjwsitton of fines and mulcts "according to the
course of other corpomtions In P^nj^land." ' Ha^^Qther provi.
sions were added, similar in auljstance to thofl^oand in the
antecedent colonial charters of the crown.
§ 64. Such were the original limits of the colony of Massachu-
setts Bay, and such were the powers and privileges conferred on
it. It is otisen'nhle that the whole structure of the charter prc-
Mippoees the residence of the company in l-^gland, aJid tlio trans-
action of all its hu!iine»fl there. The experience of tJio [lOflt had
not sufTiciently instructed the adrentiirers that settlements in
America conld not l>o well governed by corporations rc«idont
abroad;' or if any of them had arrived at such a conclusion,
there were many reasons for presuming tliat the crown would bo
jealous of granting powers of so lai^ a nature, which were to lie
exercised at such « distance as would render control or rvsponst-
hility over them wholly viBionary, They were content, there-
fore^ to get what they could, hoping that the fntiire might
jrnish more ample nppnrtimiUes forsuceeiut; that their usurpa-
Sons of authority would not be cloaely watched; or tliat there
might be a silent indulgence, until the policy of the crown might
feel it a duty to yield, what it waa now uaclcas to contend for,
t HBteh. Con. pp^ 1-23 : t Hw. CoU. Sae ; 1 Ctulm. Anuli, nj.
* 1 Chilm. AumK 81 ; Bob«rtMii'« HM. AMrin, B. 10.
40
BISTORT OP TUE COLOSICa.
[book I.
u a dictate of wiadom and ju«tfc«.' Tlic charter did not in*
olude any cluuw providing for Clic froc exercise uf relii^ion or tbo
rightd of conac-iunoo (iw ha« been often erryneougly xupposcd).'
It gave authoritj- to the governor and other ofliccra to admiiuBter
the oath of 8u|>remacy, thereby probably intending to diaoouraf^
tho settlement of papists in the colony.' But there is ttutliinn; in
it which exhibits on the part of the monarch any diii|MMitiou to
relax In favor uf the Puritaus the severe maxinu of confonoity
Ro characteriatic of his reign.* The hrat emigrants, however,
paid no attention to this circuiuHtancc; and the very first church
planted by tliera was independent in all it« forms, and repu*
diated every connection with Gpiauopacy or a liturgy.^
§ 65. Hilt a bolder atep was soon afterwards taken by the com*
pany ilflolf. It was asocrtained that little suecijsa would attend
the plantation, ao long an its uEfairs wure under the control of a
diHtant government, knowing little of its wants, and iusonaible
to its diDieultios.* Hany pvrsous, indeed, {H«iw.uuH-d uf furtuno
and character, warmed with religioiw zeal, or suffering under
religious inHferanco, wore ready to embark in the enterprise, if
the corporatnR itliuutd bo removed, bo that the iwwcrs of (govern-
mont might be exercised by Uie actual settlers.' The company
had already become alarmed at the extent of their own expendi-
tiin.-it, and there were but faint hopes of any apcedy reimhurae-
meat They entertained some doubts erf the logdity of the
counw of transferring the charter. But at length it wan deter-
mined, in August, Itl^y, ■' by the general eonaent of the company,
that the government and patent should be settled in Now Bng-
land."* This resolution infused new life into the association;
and the next election of officers was made from among those pro-
prietors who had signified an intention to remove to America.
The government and oliarter were accordingly removed ; and
henceforth tbe wholo management of all the affairs of the colony
) Bobcrtoon'* Amtiica, B. 10 ; 1 Cbdm. JUtemb, Ul.
■ 1 CUoMn'* Aimli, UI ; Robtdaea'i Ancrica, B. 10, tad mM.
■ Rat Kfl 1 GnluBK^ lUrt. eh. 1, p. 24&, vA*.
• ItobfRMoi'i Aueriat, Bcek 10, and not* ; 1 CUIa, Aflittk, 111.
• S«b«rt«>Q-t Amnrick, B. 10 ; UaU*. CoU. Wl ; 1 duln. AiuiU^ 14S, Ul, 149.
* 1 Chalnun'* AmmIw 94, 9i.
' I BsUb. Htst. 12, tS ; I ClulnMn'i Ans. IBO. IM.
* 1 tlutch. BiaU 18 ; llaUh. Coll. SS. 2« i Robortnn*! Anwrica. R. 10 ; Uu^
CMmlu, elk S, p. S>! 1 UolnuM'tAiiMK lQ7i 1 ClMltii. Auiub. UO.
41
^
N
^
vaa confided to per8(Hia and ma^stratea reaident within it« own
boaom. The fate of the colony was thua decided ; and it grew
with a papidity and Htrcngth tJiat soon gave it a great ascendency
among titv New Englaud settlcmi-nta, uud awakened the jealousy,
diatnut, and vigilance of tlio parent cuuntr}*.
§ 66. It has bueu juBtly rfinarkcd, that this tmuHactiou standa
slono in the liixtory uf English eoloniialion. ' Thu puwer of the
oorpuntion to uiako tJio tronufcr has been acrioiuly doubtvd, and
i-vcn denied." But tlic boldness of the atep ia not. moi-c ittrikiug
than the silent acquiescence of the king in permitting it to take
place. Tlic proceedings of the royal authority a few years after
sufficiently prove that the royal aoquiesoonce was not intended as
any adinisaion of right 'l*he snbuqiient atnigglof) between the
crown and the colony, down to the overthrow of (he charter, under
the famous que warranto proceedings, in 16&4, manifest a diaposi-
tioQ on the p»i-t (if tho coloniHtii to yield nothing which cMiId be
retained ; and, on tlie part of the crown, to force them into abso*
late subjection.
$ 67. The government of the colony, tmmodiataly after the re-
moval of tho charter, was changud in matiy imjHirtant fejitures;
but its fnndamental grants of territory, powers, and privileges
were eagerly maintained in their original validity.* It is tnie,
as Dr. Robertson lias oliHcrved,* that, as soon as tito Massachn-
setts emigranta had landed (m these shores, they considered them-
selves, for many purposes, as a voluntary UBSociation, possessing
the natural rights of men to adopt that mude of government
which was most agreeable to tbomMlroe, and to cnaet such laws
as wore condncive to their own welfare Tlioy did not, Indeed,
surrender up their cliartcr, or ccuac to recognize its obligatory
force.* Bnt they extended their acb* far beyond its expression
u( powers; and, while they boldly chiimed protection from it
■Riinst the royal demands and prerogatives, they nevertheless
did not feel that it funiishivl any limit u]>on the freest c\erci«c
of legislative, executive, or judicial functions. They did not
view it as creating an l-Inglish corporation, under tho narrow
OOnstraetion of the common law, bnt as affording the means of
1 RobtfUon'* AmBrioa. B. 10.
• So 1 Haich. Hbt 410. *li ; 1 CUimtA Anaal*. It*, 141, UX 118, IGl, 179.
• I tUlrh. MIO. 25 ; Untrh. Coll. 1W. MOt S03, 906, 907.
• B»bBrtw«'* Anario*. B. 10. • HaWh. Call. tM; »!;.
42
HISTORT OP Tn£ COLOKIES.
[BOOKt.
founding a broad political goremment^ aabject to the crown of
England, but j'et enjoying many excltiflire privilegea.'
§ 68. Tbo General Court, in their address to Parliament, in
1643, in anawcr to tlic rttntonstrance of certain malocoDt«nta,
naed tJio following language:' («) "For our govcrnmont itaelf, it
is framod according to our charter and tlic fuiidamoiital and com-
mon laws of England, nod carried ou ncvurdiug to the same,
(taking tlic words of eternal truth and rightcousu<.-s8 along with
them, aft that rale by which all kiugduins and jui-isdictioiis must
render account of every act and administration in Ilie loat day),
with as bare allowance of the disproportion between »uoh an
ancient, populous, wealthy kingdom, and so poor an infant, thin
colony, as common n^annn oan afford." And they then prooeededj
to 8how the trutJi of their statement by drawing a parallel, floUl
ting down in one column the fundamental and common taws and
customs of Rngland, )>cginning with Magna Chartn, and in a cor-
responding column their own fundauiE^ntal laws and customs.
Among other parallela, after stating that the supreme authority
in England is in the hijrfi court of Parliament, theyatatwl: "The
highest authority here is in the General Court, both by our char-
ter and by our owti positive laws."
§ 69. For three or four years after the remnml of the charter,
the governor and assistants were chosen, and all the business of
the government was transacted, by the freemen assembled at
large in a General Court But the members having increased,
so as to make a general assembly inconvenient, an alteration
took place, and in 1634 the towns sent representatives to the Gen-
eral Court They drew up a general declaration that the Gen-
eral Court alono had power to make and establish laws, and to
elect ollkcrs, to mlso monevs and taxes, and to sell lands ; and
that therefore every town might choose persons as representa-
tives, not exceeding two, who sliould have the full power
voices of all the freemen, except in the choice of ollicers
magistrate*, wherein every freeman was to givo his own vote.*]
' > I Hatch. HiH. 35, M, 37. 410, SOT, 319 ; Hntdi. CoU. IMv IBB. SOO, HM. MS,
907, SID. SSO, <I7. 4IS. 430, 477 ; 1 natch, tlisl. 410, 41S ; 1 CkiluMnV Aoiula, ttl,
ISS. 137, 101 i BobortMn'R AmtHca, B. 10 ; Uuah. HiU. Colon, ek. 3, 139.
■ t llBldi. Hbt. 143. 14«i Hutch. Ca)L ivt, ftr.
* BotMfiMo'i Aii>«rtM, B. 10 i I Rntdi. HW. », 33, 903 i 1 EIu. CbU. SM.
{«) See POftejr, Hut. of Kmr Eogkad, U. Ui.
CH. IT.]
KA88 AC HUSETTS.
48
The 8T8t«m thus proposed was immediately eatoblisbed hy com-
mon cMitisciit,' although it ie nowhere provided for in the charter;
and thus was formed the second house of roprt-^entativee (the
first being in Virginia) in any of the colonic»-'(«) At first, the
whole of the magistrat*>8 (or assistants) and the roprGsentatirea
sat together, and acted as one body in enacting all laws and or-
dei-s; but at lenjrfh, in 1644, tJiey separated into two diiitinct
nnd independent badicR, each of which poAHesAod a negative upon
the actA of the other.^ Thia course of proceeding continued until
tlip final difwolution of the charter.
§ 70. It may be well to state, in this connection, that the
[council establinbcd in Plymouth in a rery short period after the
grant of the Massachusetts charter (in IfiSS) linally mirrendered
their own patent back to the crown. They had made other
'grants of territory, which we shall hereafter have occasion to
notice, which had irrcatly diminished the value as well as impor-
tance of their charter. But the immediate cause of the surrender
I was the odious extent of the monopolies granted to them, which
roused the attention of Parliament and of the nation at large,
and compelled them to resign what they could scarcely maintain
against the strong current of public opinion. The surrender, so
far from working any evil, rather infused new life into the colo-
nies which sprung from it» by freeing them from all reatraint
land supervision by a superior power, to which they might per-
haps hare been held accountable* Immediately after this sui^
render legal pmcc>edingK were instituted against th« pniprietors
of the Musduchtisettx charter. Iliow who appeared were do-
priTcd of their franchises. But fortunately the measure was not
carried into complete execution against the absent proprietors
'ftcting imder the charter in America.'
§71. After the fall of the first colonial charter in 1684,'
> Col. Mxl ProriaM Un (Ul*). eh. 30, p. 07 : Hvlcb. Cdl, SOS. «c. ; I Hutch.
niM. 449.
* 1 Ilnleh. Hdt U, M, 37. «!, Mto, <W ; 1 Holma'* Annitli. 229 ; 1 Hut. Coll.
39>, SIl 1 1 CbtloMta'i Annak. 1S7.
* 1 Hnteb. UiM. (18^ 1 Cln)n«us'» Amut*. 1361 Ool. and I'Toriucr Lam (1814).
^dk 31. p. SS ; Balch. Oil. IW : 1 Dong. SoMnn. 131.
* t HolniM'i AnuU. S:T ; 1 Hu. CdU. 300^ SPS ; 1 CIiilmen'K AddrU. »t, 9S, M.
* t Hnlnia-* Aniul*, XS7 i Rntc^ ColL 101, 104 ; S Hai. ColL l!3, tU ; S Chal-
Mn'i Ar.nal*, 111.
* 1 UoLniM'l lUMb, US.
(pi ftitnj. EDat tt H*w EnRlmd, I. 871.
44
HmOBT OP THE COLOKIBS.
[SOOK I.
MassncbuMtls r«mftin«d for gome years in a very dti«turi>e(l Btat«
under the arbitrary power of the crown. At lenfi;th a new ciiar^J
ter was in 16U1 granted to the colony by William and Mary;
and it hencefoitb bdCAmo known as a rrorina;, and continued to
act under lhi» last charter until after the Rorolution. The char-
ter comprehended within ite territorial liroila all the old colony
of the Massachusetts Bay, tJio colony of New Plymouth, the prov-
ince of Maine, the tcrritury called Aeadie, or Nova Scotia, and
all the lands lying between Nova Scotia and Maiuu ; and incor-
porated the whole into one province by the name u( the I'ruviuou
of the 3Iii«sachii»uttK Bay in New England, tu be huld<.-ii as of
the royal muuorol East Grccawich, in the coimty of Kent It
confirmed all prior grants made of land^ U> all pcT«on«, corpora-
tiontt, eolle^rit, towits, vill^es, and schooU, It i-e«crved to the
crown the a|)pointment of the governor, and lieutenant-governor,
and secretary of the Province^ and all the offieurs of the Court of
Admiralty. It provided for the appointment annually of twenty*
eight counsellors, who were to he chosen by the Qeneret Couit,
and nominated the firat board. The governor and conntwllorfli
were to hold a council for the ordering and directing of the
affsirs of the Provinca The goTcrnor was invested with author-
ity, with the advice and coniient of the council, to nominate and
appoint "judges, cwramissionera of oyer and termiuer, sheriffa,
provosts, marshals, justices of the peace, and other ofTieers to the
council and courts of justice belonRtut;." The gnvemorwos also
invested with the command of the militia, and with power to ap-
point any chief commander or other oQicer or officers ; to train, in-
struct, oxcrciae, and goreru the militia, to lead them in war, and .
to use and exorciw tlic law martial in time of actual war, inva-
sion, or rebellion. He had altio the power of callinjif the General
Court, and of adjourning, proroguing, and dissolving ib He
had aliio a negative uftou all lan-s posfted by the General Court
The General Court was to aiiscmble annually on the last Wednes-
day of &lay, and was to consist of the governor and council for
the time bein;;, ami of siicb repn-aentativea Wing fre«l)iitders M-
should be annually (;k>ctcd by the freeholders in earh town, wbo^
posseased a freehold of forty abillinga' annual value, or other
estate to thu valm* of forty pounds. Each town was entitled to
tworepresentativfs; but tlic General Court was from time to time
to decide OD (he number which each town should send. The
CH. IT.]
NAWAOHCSSrtS.
45
0«Deral Court was in\-«stod vitk full anthorltj to erect courts,
to levy taxe*t and make all wbolcsouic laws and ordinances, "so
as the sAinc be not repugnant or contrary to the taws of Eng-
land ; " and to settle annually all civil ofticent whose appointment
was not othorwiae provided for. All lawn, bowsTer, were to he
itcnt to Kiigland for approbation or disallowance; and if disal-
lowed, and so signified under the aign manual and signet, within
throe years, the same thenceforth to cease and become void;
otborwiHc to continue in force according to the terms of tticir
original enactment. The Genera! Court was also invested with
authority to grunt uoy lands in the colonics of lIuSDactnisetta,
New Plymouth, and province of Uoine, with certain exceptions
The governor and council wer« invratiMl with full jusrisdiction
as to the prul>ut4; of wills and granting administratioiut. Tho
goTcnior vtus also made commander-in-chief of the militia with
the ustuil martial |>oworii; but waa not to exercise martial law
without the adrice of tlie council. In case of bis death, removal,
or absence, his autliority was to derolre on the lieutenant-gov-
enuH*, or, if bis ofltoe was va<'ant<, then on the council. With a
view also to advance the growth of the Province by encouraging
new settlements, it was expressly provided that there should bo
"a liWrty of conscience allowed in the worship of Ood to nil
Chrisiiarai except Papists;" and tliai all suhjeota inhabiting in
the province and their children bom there, or on the aeaa going
or returning, should have all the liberties and immunities of free
and natural subjccla, as if they were bom within the realm of
England. And in all cases an appeal was allowed from the judg-
ments of any courta of the Province to the King in the Pri>7'
Council in England, where the matter in difference exceeded
three hundred )>uunds sterling. And finally there waa a reserva-
tion of Uie whole admiralty jurisdiction to the crown, and of a
right to all aubjocts to fish on tho coasts.* Considering the
spirit of the times, it must )>o acknowledged that, on the whole,
this cliart«r contains a liberal grant of authority to the Provineo,
and a reasonable re«en-aUun of tho royal prerogative. It was
haiiled with sincere satisfactjou by the colony, after the dangers
> Thfl ehartar <nU tie tmoA aX Utgt In tha CcAonj-aad Piarlaea Lawi at Jtumthui-
Ktta. F<riDUa In ISU. lu Rnbataam b woll «unHn(d op In 1 HoImm^ ApmIi, 48«.
Oftdor tha Ant 4hui«r tiM •ilmlnUlr Jari*iiicUM •» MtHciad hj tlnOoltakl Com-
BU Uw OMutt, tnu la tafnul ousa. 1 Hatch. Hut. UI.
46
mSTOBY OP TBB C0L0SIE8.
[BOOS I.
which had for so long & time mcuaced its liberties and its
§ 72. In reviewing the lawn paRRed hy the Ij«g)slatiirc of Massa-
chusetts during its colouial state, the first and nioflt important
consideration in the early care with which the ptiblic rights of
the inhnhitants were declared and established. N'o man's life,
person, honor, or good name was to be affected ; no man was to
be deprived of bis wife or children or estate, ontcss, by virtue
or equity of some cxpn-ns law of the General Court, "or, in casa
of a defect of a law in any particular cium,', by the Word of God;
and in capital casvs, or in casi'S uf dismembering or banishment
according to that Word, to be judged of by the General Court""
No persona but church-mcmbcrs were allowed to become freemen ;
and all persona of twenty •ooe years of age were allowed to dispose
of their estate by will or any proper conveyance.' All convey-
ances were to bo by deed acknowledged and recorded in the pub-
lic records.* AH lands and hereditaments were duelarod free
from all fines and forfeitures. Courts of law were cstahtishcd,
and local processes provided for.' llie trial by jury in civil
and criminal esses was secured.* Wager of law was uut allowed
but according to law, and according to the precept in Exodus
(xxii. 8). DifTicult cases of law were finally determinable in the
Court of Assistants or in tlte General Court, by appeal or peti-
tion. Id criminal cases where the law prescribed no pcnal^,
the judges had power to inflict penalties "According to tlie mie
erf God's Word."' Treason, murder, poisoning, arson, witch-
craft, sodomy, idolatry, blasphemy, man-stealing, adultery, false
witness, conspiracy, and rei>ellion, cursing or smiting of parents
by children, l)eing a stubt>om or rebellious sun, burglary, and
rape (in particular circumstances) were offences punishable with
death." For tlte severity of some id these punishments the Gen-
eral Court expressly justified themselves by the language uf the
> 1 Hutch. HbL 415. IIS.
• Hutch. CoU. »1.
■ Amt. Col. aad Pror. Un. ab. 4. {v <4 ; ch. ]<I4, p. 3IM.
• Ant. CtA. ua Prev. Lam, clul, p.tl;cli.28,ii.S8;l Hutch. Slit. US.
• Hiitcli. Cull. :t03. iM.
• 1 Hnlck HUi. ISO ; Hutch. OoU. t03, SOS.
T Hutch. OolL IDS.
■ Ant. Col. MtdPiwr. Uwt, «h. IS, pfi. SK, S»^ SO 1 1 Uuleh. UuL 110, 141, (IS;
1 Mk. N«« UuiptUn. ok. I, p. Ml
CH. IT.]
HASaACHDBEm.
47
Scripturt-a But theft was not puniabed vith death, l>e«ause,
as they tiaid, ''wo read othervriitc In the Scriptures;" > and manj
other oriim-s uf n huinoiu nuturu wore aufforad to pasx witli a mod-
erate piiiiidhiuviit.' llutchiiiitou hiifl null ubAcrvc-d, tliat^in pim-
itthing ofToiici.ti they pru(c«8cd tu be ^vcmed by the judieiul lawa
of Moses, but no further than those laws were of a niorul na-
ture."' Mftrriages were celebrated exchisively by magistratM
during the first charter; though afterwards there WM a concur-
rent power given to the clerg}.* Divorces a mnua €t thoro socm
nut to have been in use during the period of the lirst charter;
but for the same causes for which such a divorce might be granted
by the spiritual courts, a divorce a vinculo was granted. I<Vma]e
adultery was a suflicieut cause; but male adultery noL^ In ten-
demesa to the marriage state, a man who struck his wife, or a
woman her husband, was liable to a fine.*
§ 78. In the beginning the county courte had jurisdiction of
the testamcntar}' matters, and real estate was at first treated as
mere boita in the civil law. When a positive rule was made, all
the estate was (apparently with some reference to the Mnsaic
law) made subject to distribution; the widow had such juirt of the
estate as the court held jufit and equal; and the rent was divided
among (he children or other heirs, the eldest son having a doablo
portion,* and the daughters, where there wore no soaa, inheriting
as coparceners, onless the court otherwise should determina'
If the party died insolvent, his estate was distributed amuug all
his crL-dilors, thi^re not being any prefurunoo uf any debts by
judgment or specialty.*
The law uf iiihoritnuce was thus, as we »ce, altered from that
of England frum the bi-ginning; and yet, strangely enougl), the
Ocncral Court, in thoir answer in ICAfi, considered their canou
of deaocntos parullel to tlie Eoglish law, and expounded it by
the same terms, " the eldest son is preferred before tlie younger
in the ancestor'a inheritance,'*'" when in reality he had only a
> Uoteh. ColL SW.
• 1 Hnteh. Hitt. (13, iiS, iU \ Anb Oat. mi Pror. La>N ch. IT. p. H.
■ 1 nmA. Ilut. iU, 439. • 1 Hulcli. lliit. tt(.
* I nukh. Hut. 4iSu ■ 1 HduIl. Ilict. IIS.
T I Butch. HbL 4t«.
• A>t. Col. >»d Pn>T. tin, rli. IM. ^ MW.
* I Hatch, Bist. US.
- Hnicli. OolL »}T ; 1 Qnteh. niit. 417 ; AaLCoL uuIPmt. Uin, ch.104, p. SO<u
48
BISTORT OF THR COLOKIKS.
[book I.
double portion, and the estate u-as partible among all the chil-
dren. Their land being by the charter held, as of the manor of
East Greenwich, in free and common socage, they attribnt«d to
it the gavelkind quality of not being forfeited for felany or trca-
Bon; and the convict might, therefore, even aft«r soutvnco, dis-
pose of it by wilLi Eatatea tail were recognized, and in such
caaos tbe heir took pfr/ormam doiU, according to the common
law, and not all the children tm one heir."
§ 74. In respect to ecclesiastical coiiccnis, they made ample
provision for their own church (meaning the Uongregational
Church), exclusive of all others. In tlieir parallel in lfU6, they
quote the provision of Magna Charta, that "Die chur<!h shall
enjoy ail licr libcrtica," and, dropping all suggecttion of the real
difTt^rence^ of their own church estal^Iisbment from that of Eng-
land, they qiiot« their own provision, that "all persomi orthodox
in judgment, and not scandalous in life, may gather into a church
fttate, according to the rules of the goA])el," aa of aimiiar import.*
They gave to their own churchea, when organized, full power and
authority to inflict ecclesiastical censures, und even to cxpol
members. But Uioy rceorvcU to the civil authority the further
power to pnniah offences, and "the liberty to see tbe peace, or-
dinances, and nilea of Christ observed."* Every church had lil»-
orty to elect its own officers, and " no injunction was to bo put
upon anydiurcb, church officer, or member, in point of doctrine,
worshi)), or discipline, whether for substance or circtimstonc
besides the institution erf the Lord."' But the General Cour
with the assistance of the clergy, wore in the habit of judging
of all such multem with supromo authority, and of condemning
errors with uo sparing liamL They had not tlie slightest scruple
of punishing heresies with riim and banishmont> and oron, in
otK4tinate casea, with death." Ministera were maintained and
public worship provided for by taj(es assMscd upon the inbabi-
> 1 Hntch. HUt. 4tT. * 1 Hntdi. Hirt. M.
• HaUdi. CollNt. V>1 1 AM. Oaloai. ud Prov. Uimt, «^ 39, p. IM ; 1 Uu Call.
I8S.
* Ant. Od. ud 1>roT. Lmra, di. 99, jip^ 100. 101.
« I ilmdi. Hut. *if>. 4SI, 4S£. 4S3. 13^ 131 ; I B«lk. Vm Hunp. ch. 4, p^ 70; 71.~
' • RobntMit'* Amrrkk, B- 10 ; 1 8v)k. Vtn Huvp. ch. t. t■^ TO la 7T : Aat Col,
■n<l Ptqv. U«>, cIi. 57. |>. W\. kc ; Hntdi. Col. SI9, Zl« i 1 tliuli. niaL 431 ;
Hatcb. HiM. 42 -, 1 Uu. CoU. S88 ; 1 Ctulacn'B Aoiud^ l«t, I6t, ISS, 1<7. 1II&, IS
l>Ok 191, 19*.
Cfl. 17.]
HAaBACHirunra.
40
tanUt of each parochial district ; and an attendance tipon public
worahip vas required of all persuna, noder p«iuilties, as a sol-
emn duty.' So ofTccttiul wirre the oolooial laws in respect to
conformity, and bo powerful tlio intlucnfc of the mafnstrates and
tlio clerj!;}-, that HiittfhimoD informs ax that there wm not "tny
Episcopal Church in any part of th« colony until the charter was
vacated. ">
§ 75. But the moat strikinfr, oa well as the moat important
part of their Ic^slation, is in rmpect to edncation. As early as
ltS47, the (i«ueral Court, "to the end," as the preamble of the
act declares,* "that lenminft may not be buried in the frravea of
our forefathers in church and commonwrcalth," provided, under
a penalty, that every township of fifty householders "shall ap-
point a public school for tlie instruction of children in writing
and reading," and that every town of one hundred householdei'S
"shall set up a grammar school, the master thereof being able
to instruct youth so far as may be fitted for the university."
This law has, in nntiatance, continued down to the present timea;
and it has contributed more than any other circumstance to
give that peculiar character to the inhabitants and institutiona
of Massachusetta for which she, in common with the other
New Knglnnd States, indulges an honest and not unrcaaonabte
pride.
§ 76. After the grant of the provincial charter, in 1691, the
legislation of the colony took a wider scope, and became more
libera! as well as more enact At the very first session an act
passed, declaring the general rights and liberties of tbo people,
and embracing the principal proviHinns of Magna Charta on this
subject Among other things, it was declared that no tax could
he levied but by the General Court ; that the trial by jury should
be secured to all the inhabitanta; and that all Innda shall bo
(reo frran escheats and forfeitures, except in casca of high trea-
son.* A Aa&eot eorpua act was also paused at the aanio session;
but it seems to hax-e been disallowed by the crown.^ Chalmers
asserts that there la no circumstance in the history of colonial
t I HbuIi. HW. 427 ; Ant. Col. mkI Ptot. Uw*. eh. 8&. pp. 103, 101.
* 1 HoU-h. eut. 431.
* Ant. Col. kn<l Prer. Uwa. ch. S8. p. IW.
* 3 llouli. Hat S4 : Ant. Cot knd Prov. Um, di. 3. p, SI4.
* 3 Hatch. Hitt. 61.
TOT- I. — 4
■i
50
BISTOBT OF TDK O0LOKIE8.
[book 1.
jurUpnidcnco better establishod than the fact that Ui« haheaa
eorpuM Act was not extended to the pl&ntatioiu untii the reign of
Qiieeii Aiiue.'
§ 77. It doe« not Bccin necessary to go into any iniuuto cxam^
ination of the sulisequent provincial legislation. In it« geticr
character it did not materially vary from that antecedently
adopted, except bo far as the charter reqaired, or a progressive
spirit of improvement invited a change. Lands were niadc lia-
ble to the payment of dobta; the right of choosing their minister
vas, after some stnigglcs, secured in effect to the concurrent^
vole of the church and congregation in each parish; and the
spirit of religious iutoleranee was in some measure checked, if
not entirely subdued. Among the earliest acts of the provincial
L^islature, which were approved, was an act for the prereution
of frauds and perjuries, conformable to that of Charles the Sec*
ond; an act for the olaervance of the Lord's Day; an act for sol-
emnizing marriages by a minister or a justice of peace; an act for
tlie support of ministers and achoolmasters ; an act for regulat-
ing towns and countieii; and an act for the settlement and distri-
bution of the estates of persons dying intestate.* These and many
other acts of general utility have continued substantially in force
down to onr day. Under the act for the distrihution of estatea,.
the half-blood were permitted to inherit equally with the whole J
blood.' Entails wore preserved and passed according to the
course of descents of the common law; but the frcticral policy of
tlie State silently reduced the actual cjreatiou of such estates to
comparatively narrow limits.
> ] Ctulm. Anutli, H. T4.
* a Uukh. HbL 4i, H.
• ma. N.
en. T.]
KKW UAUraBIBB.
61
CHAPTKR T,
NEW BAHPlitttRR.
§ 78. Hatinc gone into a full coiigidcration of the origin and
political orgAnization of the primitire colonics in the SuutJi und
North, it remains only to take a rapid view of those which were
subfleqnently eslablifthed in both regions. An historical order
will probably be found as convenient for this purpose as any
which could be dcviai'd.
§ 79. In Nororobor, 1620, Captain John Mason obtained a
grant from the Connt-n of Plymouth of all that part of the main-
land in New England " lying upon the 8«a-coast, beginning from
the middle |<«irt of Merritnuck River, and from thcnec to proceed
northwards along the st^'a-coust to Pigcata(|ua River, und »o for-
wards up within the said river and to the furthest iH^d theruof ;
and from tlieuce north westwards until thrcmcore miles tic fin-
ished from the first entrance of Piscataqua Itivcr; and also from
Merrimack through the said river and to the furthest head thereof,
and so forwards up into the lands westwards, until threescore
miles be finished ; and from thcnoc to cross overland to the end
of the threescore miles accounted from Piscataqua River, together
vith alt islands and islets within five leagues' distance of the
premises."' This territory was afterwards called New Hamp-
shire The land so gntntetl was expressly subjected to the con-
ditions and limitations in the original patent; and there was a
covenant on the part of Mason, that he would establish such gov-
ernment lltercin, and continue the name, "as shall be agreeable,
M near as may be, to the laws and customs of the realm of Eng-
land;" and that if charged with neglect, he would reform the
same according to the discretion of the president and council ; or
in default thereof, that the aggriored inhabitanta or planters,
tenants of the lands, might appeal to the chief court of justice of
the president and council. A further grant was made to Mason
by the Council of Ptrmoutfa about the time of the surrender of
■ lUi. O" <«> ' I Hotnua'i Annik, IM ; 1 B«Ik. N*w Urnp. cL I. [k U.
52
BISTORT or THE COLON'fEB.
[book I.
their charter (22 April, 16lt5), "beginning from the middle part
of Xnumkeag River [Halcm] and from thenoe to proceed eaafc*
vardH along the aea-coaat to Cape Ann and round about the sams
to Piscataqua harbor;" and then covering much of the land in'
the prior grant, and giving to the whole the name of Xew Uamp-
ahire.* Thia grant included a power of judicature in all caaes,
civil and criminal, "to he exercised and executed according to
the laws of England aa near as may be," rcson'ing an appeal to
the council. No patent of confirmation of tliis grant appt-ars
to have been nude b; the crown after the surrender of the Pljr-
inoufh patent*
§ 80. Various detached settlements were made within thia
territory; and »o ill defined were the bounduriea, that a contro-
Tersy soon arose between Haasachuttetts and Masun in respect to
the right of sovereignty over it.* In tiic cxpottition of its own
charter Massachusetts contended that its limits included the
whole territory of New Hampahirc; ajid, being at tliut time com-
paratively strong and active, she succeeded la catablishing her
jurisdiction over it, and maintained It with unabated vigil
for forty years.* The controversy waa finally brouglit before
king in council; and in 1679 it was solemnly adjudged agaii
ttic claim of Mussuchusetls. And it being admitted that Mason,
under his grant, had no riglit to exercise any powers of gox-em-
ment, a commiwiion was, in the same year, issued by the crown
for the government of New Hajiipshirv.' By the form of govern-
ment described in this commission the whole executive power
was vested in a president ami council appointi'd by the crown,
to whom also was oonfidcd the judiciary power with an appeal
to England. In fho administration of justice it was directed,
that ** the fonn of proceedings in such cases, and the judgment
thereon to be given, be as consonant and agreeable to the lavrs
and statutes of thia our realm of England, as the present stat
■ 1 ItM. CoIL SSS, 384. SSS ; 1 dulm. AnwJi^ 172, 473, 4TT ; 1 B«Ut. H. Ihinp.
cb. 1, p. 17.
< 1 Haldi, HiiL SIS. SI 4 : MmIi. Colon, oh. 3. p. 9J.
* 1 HaKti. HiM. 101. lOS. 100, >11, S13 to SIS.
* 1 Clulm. Annak 477. 4S4. 4SS. M4, CDS ; iUnh. Cotoa. ch. 4, p. IM, di. «,
pp. 147, laS : nulch. Coll. 422 ; 1 Bdk. N. Ilunp. cb. 2. pp. tS. SO.
* IChilnt. AiuialH, 48B. iM; 1 Hutch. UliL 3I> i 1 Rolnut'i AatiiU,»H lUiid
Cohm. ch. «. p. leS; R»b. Amcrio, K 10 ; 1 B«lk. V. H«nip. eh. 6, pp. W, 1» ; 1
Bong. Baaan. S8 ; H, Ukinp. Piot. I«n (edit. 1771), p. 1. to
en. v.]
HEW HAKPBHIBR.
68
and condition of our nubjcctn inhabiting within the limits afore-
said, and the circumfitancea of the place will admit"' The
legialatiTe power was intnistcd to the prenident^ council, and
burftessea, or ropresentativea choAcn l>y the towns; and they were
authorized to lery taxcti and to make laws for the interest of the
Province; which laws, bcin^ approved by tho president and coun-
cil, wore to 8lund and be in (orcc until the pleaaure of the kinp
should be known, whcUier th« name laws and ordinances should
receive any diange or couririnution, or be- totally disallowed and
discharged. And tlic president and cotmcil were required to
timiiamit and send over tJie aumc by the lirst slitp that should
depart thenco for England after tlieir making. Liberty of con-
Bcicnoo wwi allowed to all Protostants, those of the Church of
England to be particularly encouraged. And a pledge wn« given
in the commisaion to continue the privilege of an assembly in
the same manner and form, unless by inconvenience arising there-
from the crown should sec cause to alter the same.* A body of
laws was enacted in the lirst year of their legislation, which,
upon being sent to England, was disallowed by the crown.* New
Hampshire continued, down to the period of the Revolution to
be governed by commission as A royal Province; and enjoyed the
privilege of enacting her own laws through the instrumentality
of a general luutcmbly, in the manner provtdeil by the fint com-
mission.* Some alterations were made in the snccessive com-
missions, but none of them nruide any .tnlifttantive change in th«
organisation of the Province. Tlic judicial power of the governor
and council was subsequently, by law, confined to the exercise of
appellate jurisdiction from the inferior courts ; and in the later
commissions a clause was inserted, that the colonial atatutes
should " not be repugnant, but aa near as may bo agreeable, to
the laws and statutes of the realm of Eugland."'
§ 81. The lawa of New Uampshire, during its provincial slate,
partook very much of the character of those of the neighboring
proTince ol Massachusetts.' Those regulating tlio descent and
' H. HiMp. Pro». I*m. {clil 1T71). pp 1. 3.
• 1 Cbdm. AmuU, 489. 490 ; 1 l<cJm«'* Annilt, ME ; ) Kolk. N. Bmf. Ot. *,
pp. ISa, IBB ; 3 Ottk. S. Uunp. PnCu* ; V. Huip. Pmr. U<n (adit. 1771), ^ &■
• IMd.
• 1 Clwlin. Aao^it. 4»1, 492; IVS. S0&
• H. Bmf. PriiT. Un (tdiL im). p. «1. mi R
• K. Hmp. PkVT. U<n (tdiL 1771), Id. IS, 65,90, IM, 10S.187, 143, 157, 188, IM.
54 HISTOBT OP THE COLONIES. [BOOK I.
distribation of estates, the registration of coDTejances, the tak-
ing of depositions to be used in the civil courts, for the main-
tenance of the ministry, for making lands and tenements liable
for the payment of debts, for the settlement and support of public
grammar schools, for the suppression of frauds and perjuries,
and for the qualification of voters, involve no important differ-
ences, and were evidently framed upon a common model. New
Hampshire seems also to bave had more facility than some other
colonies, in introducing into her domestic code some of the most
beneficial clauees of the acts of Parliament of a general nature,
and applicable to its local jurisprudence. > We also find upon
its statute book, without comment or objection, the celebrated
Plantation Act of 7 A 8 William S, ch. 22, as veil as the acts
respecting inland bills of exchange (9 & 10 William S, ch. 17),
and promissory notes (4 Anne, ch. 9), and others of a less promi-
nent character.
> N. Hunp. Pror. Ltws (sdit. 1771), p. 209 ; Got. Wentworth'a CommlMioii in
1766.
MAINS.
55
CHAPTER VI.
■AIHB.
5 82. In Aognsl, 1622, the Coancil of Plymouth (which neenia
to have been estromcly profitfc aud iiicoiwidcrmt* ia its grants ')
granlod to Sir Fcrdinando Oorgvs and Captiiu John Ma«ou all
the land lying between the rirent Merrimack and Sa^duhock, ex-
tending back to th« great Inkeit and rivera of Canada; u-liicb was
called Laconia.' In April, 1639, Sir Fcrdinando obtained from
the erown a eonJ)rmator>' grant of all th« land from Piscataqua
to ^agadahock and the Kennebec River, and from the coaftt into
the northern interior one hundred and twenty miles; and it was
Btyled "The Province of Maine."* Of this province he was made
rliord Palatine, nith all the powers, jurisdiction, and royalties
elonging to the Bishop of the County Palatine of Durham ; and
the lands were to he holdcn aa of the manor of East Greenwich.
I'he charter contains a reaenalion of faith and allegiance to the
crown, aa having the supreme dominion; and the will and pleas-
ure of the crown ia signified, that the religion of the Church of
England bo professed, and ita ecclesiaatioal government estate
liahed in the province. It also authorizes tlie Palatine, with (he
BMent of the greater part of the freeholders of the province, to
make laws not repugnant or contrary, but aa near as conveniently
may be to the Uws of Englund, for the public good of the Prov-
ince; and t« erect courts of judicature for the determination of
all civil and criminal causes, with an appeal to the Palatine.
But all the puwent of gOTcrnment so granted were to be subordi-
nate to the *' power and repenunt " of the lords oommissiouers for
LForeign plantations for tlie time being. The Palatine also had
authority to make ordinances for the government of the province,
under certain rcAtrictions, and a grant of full admiralty powers,
subject to tliose of tJie I^ord High Admiral of England. And
> I HaUk. IliM. 8, 104 ; Rol). Anwriias B. 10 ; 1 Douft. Sunn. 3M^ S80, SU.
* tUnuh. HkLSlS; 1 HolmM'ii AniMb, ISO: I It«lk. N. Hiiap.ek.1, p. 14.
* 1 lioliBM'* Autb. SSI 1 1 Chalm. AnuK 17% 173, t7< ; 1 Dong. Bnam, 384, «&
66
BI8T0B7 OP THB COLOKIES.
[BOOK I.
the inhabitants, being subjocU of the crown, wen to onjoj' all
tiie li^ts and privilcKOi of natursl-bom subjocts in Enj^land.^
§ 83. t'lidii'r thf.'so ample prorisiona Gorgvs soon cittabliHbcd
a civil govcnimcat in thv provinoo, ood uuidu urdiauui-^>fl. Tbo
Roremment, such u it waft, was sold)' ooQfidod to Ihv executive,
wiUiout any jMwont of logislatiou. Tlie province; lani^islivd in
imbecility under liifi care, and began to an|uire vigor oaly when
be ccaaed to act as proprietary and lawgiver.' Mafliuiubuitctts
aoon afterwards set up an exclusive right and jurisdiction over
the territory, as within its chartered limits, and was able to en-
force obedience and submission to its power.' It conlinuvd
imdor the jurisdictiou of 3fussuchu8«tts until 1666, when the
Bommisai oners of the crown separated it for a short period ; hut
the autliority of Massachusetts was soon aftorwardx rc-«stab-
liafaed.* The controrcny butwecn Massachusetts and tlio Pala-
tine, as to jurisdiction over the Province, was brought before th«
Privy Council at the same time with that of Mason rcitpectiug New
Hampshire, and the claim of Uanachusetts was adjudged void.'
Before a final adjudication was had, Ma.<)Aachuiu>tla had the pni-
deiice and sagacity, in ItiTT, to purchase the litlo of Gorges for a
triOing sum ; and tlius, to the great disappointment, of the crown
(then in treaty for the same object), succewled to it, and held and
governi-d Maine as a provincial dependency, until tlm fall of its
own charter; and it afterwards, as we have seen, was incorporated
with MassacliuBetts in the provincial charter of 1691.*
) I Hu. CoU. 443, <«s.
* 1 CluJiu. Aniwb, 4r<, 4T> ; 1 Halma'« Jbiiub, SSI, tS$, SM.
* 1 Chats. Aniuli, IM, 481. 183 ; 1 Hntek. Uutorr, 17(1, 177, SS«: 1 HoIm^
Anwda, SH ; S WJsUiMp'i Joum. $1 42.
« 1 Oulm. ABoab, 433; 4S4 1 I HoliiMt'i A*n*U, US, 348 ; Hatch. CoU. 4$8.
* 1 Chilu. Aniuk, US, SM, S03 1 I HoIim-i Annik it*-
* 1 CtuUa. AnMb, tit, 187 ) t HdIidm'* Annak, ttt ; 1 llntcli. Hut. »>.
CH. tilJ
CONMBCnCDT.
57
CHAPTER VIL
OONKBCnCDT.
I
$ 84. COMIfRCnCOT waa originally bcMImI under tbe protection
of MaflAscliusetts ; but the in^iubitants in a fow ypsm aftorwanis
(1(S38) felt at liberty (altt'r tlic t-xumpk- of MaHflach)i%«>tt.t) to
{fame a constitution of Kcvvrnmcnt antl laws for thcmsi^iveB.' In
1630, the Earl of Warwick obtained from the Council of Ply-
muuLh a patent of Die land upon a straight line near the sea*
Khorc towards the southwest, west and by south, or vest from
Narragnnset Kivi>r forty leaguel^ a» the coast lies, towards V'ir>
ginia, and all within that breadth 1o the South 8va. In March,
1681, the liarl of Warwick conveyed the same to Lord Say a»d
Scale and othera. In April, 1635,* the damp council fi:ranted the
same territory to the Marquia of Hamilton. Piotsession under
tite title of Lord Hay and H«alc and othoi-tt wiu) taken at the mouth
of th« Conntx-'ticut in 115X5.* The aettlem there were not, how-
erer, disturl>ed; and finally, in U>44, they extinguished tbe title
of the pro]>rietartcB, or loidii, and continued to act under the cun-
MitutioD of government which they had framed in 1(188. By that
constitution, which waa framed by the inhabitanta of the thn:«
towns of Windsor, Hartford, and Weathersficld, il waa provided
that there ahould be two general asacmbliea annually; that there
should l>e annually elected, by the friJemcn, at the court in April,
a governor and aix aflsistanta, who should " hare power to admin-
later justice according to the law here established, and for want
I 1 Hutck Hi«L H, » : S ilukti. Htol. MS 1 1 Hu. CslL 331 ; I HoIbm** Aaad^
nt, SSS, m. 333; VI, an; l Chdn. A&iuIi, S»S, 287, 28> i 1 Doug. Sttiain. lU,
t&: t Hatck. Hut. 104.
TV tutntuiot oT thvt frmnM ot goTcniBiMit li finn in I Holm'* Aiuub, S51 ; knd
> tnll «ot>7 in 1 Hot. Cull. 497. *i\.
• i Hnlchu HiM. 303i 1 SUt. Coll. 318i 1 Holmu'* iRMb, SMj 1 CUai.
■ 1 Oultk. Anadir ttS. 389, 300, »00; 3 Hotoli. Kiit. SOS: 1 lUi. Coll. S95. «H(
I HolMn'a AdmIi, 930; 1 Hutch. Hi*L it; 1 Wuitkrap'i Jour. 170, 8B7i Hutck.
CiU. 413, IIS.
58
HISTORY OK THE COVOKtfS.
[SOOK I.
Uicrcof according to the rule of tlie Word of Ood." And that aa
many other oiHcers should be chosen aa might be found requisite.*
To the G«neral Cnui-t each of the abore-oamed toims was cnti*
tied to send four deputies; and other towns, which should be
afterwards formed, were to scad ao many deputies as the Gen-
eral Court should judgd meet, according to the iip[>ortio?unont
of the freemen in the town. All {>cr8ous, nho wore inliabilants
and freemen, and who took the oath of fidelity, were entitled to
vote in the elections. Ciiurch-membcrsliip was not, as iu Massa-
chusetts, an indispensable qualifieatioiL The supreme power,
legislative, executive, and judicial, ww vested iu the General
Co»irt.*
§ 85. The colony of New Haven had a separate origin, and was
settled by emigrants immediately from England, without any
title derived from the patentees. They began their settlement Iu
\iiSH, purchasing their lands of the natives, ajid entered into a
solemn compael of government.' By it no person was admitted
to any ofiiee, or to have any voice at any election, unless he
a membvr of one of the churches allowed in the dominion. Thcr
was an annual election of the governor, the deputy, magistrates,!
and other ofTicers, by the freemen. The General Court consisted
of the goveniur, deputy, magistrate*, and two deputies from each
plantation ; ' and was declared to be " the supreme power, under
God, of this independent dominion," and had authority **to de-
clare, publish, and establish tlto laws of God, the Supreme Le-
gislator, and to make and repeal orders for smaller uuitters, not
particularly determined in Scripture, according to the general
ruli'« of riglitcousness ; to order all affairs of war and peace, and
all matters relative to the defending or fortifying the country;'^
to receive and determine all appeals, civil or criminal, from any
inferior courts, in which they are to proceed according to Script-
ure light, and laws, and ordera agreeing tJjerewith.''' Other
courts were provided for; and Ilutchinson observes that their
laws and proceedings varied in very few circumstances from
Hassacbusctts, except that tbey had no jury, either in civil or
> 1 Hu. Coll. t37i 1 KalivM't AbimI*. tSl. * JMA.
• I Butcb. Hint. (■% S3; I Kulmn'* Anadt S4t, ttt; 1 Cbalm. Aaittb MO;,
RobtrtaMi'* AuKtiM, B. 10^ S Annicw) Uuatas^ S33.
• » AmmIcui UiiHPra, S13.
• 1 Unlcti. Hltl. 83, not*.
ca. Tir.]
OOmiBCTIOOT,
59
criminal cases. All nuUers of facts were (letcrmined bjr the
court'
§ 8*!. Soon ftft«r ihe restoration of Chnrlc« tlie Sccoml to the
throne, the colony of Connecticut, aware of the douUful iiaturo
of its title to the exercise of sovereignty, solicited, and iu April,
lt(ti2, obtained from that monarch a charter of government and
territory.' The charter included within ittt limits the whole col-
ony of New Uaven; and ait this was done without the conwut of
the latter, reBistance was made to the incorporation until ltKi5,
when both were indiftsolubly united, and have ever since remained
under one f!oncral m>vernment.*
§ 87. The charter of Coimecticut, which has been objected to
by Chalmers ait establishing *'a mere democracy, or rule of the
jH-'opU'," cunluined, indeed, a very ample grant of privileges.
It incorporated tlio inhabitants by the name of the Governor and
Company of tJic Colony of Connecticut in Now England in Amer-
ica. It ordained that two general assemblies shall be annually
held ; and that tlie assembly shall consist of a governor, deputy-
governor, twelve awistants, and two deputies from every town
or city, to be chosen by the freemen (the charter numinattng
the lirat governor and assistants)^ The general oeaembly had
authority to appoint judicatories, make freemen, elect oflicera,
establish laws und ordinances "not contrary to the laws of this
realm of England, " to punish offences " according to the course of
other corporations within this our kingdom of England," to as-
semble the inliabitunis in martial array for the common defence,
and to exercise martial law in coses of necessity. The lands
were to be holdeu as of llie manor of East Oreenwich, in free
and common soeagl^ The inhabitants and tlieir children born
there were to enjoy and possess all the liberties and immunities
of free^ naturul-bom subjects, in the same manner aa if born
within the realm. The riglit of general fishery on the coasts
waa reserrcd to all subjects; and finally the territory bounded
ou the east by the Narrngnnsct River, where it fails into the sea,
and on the north by Massachusetts, and on the south by the sea,
• 1 Hntoh. HM. 81. mtei 1 Clwlai. AmmU. SM.
• 1 Uu. CoU. &Hi ] Ch*ba. AiihIi, 10*. »3i 1 Hofaii«'a Anatli^ tSO; S Dmi^
Bmiin. l«t.
• I tUlmtTt AnatK 888; 1 Cbthn. AmmIi, SM; lf«nk. OdIm. I84i 1 Chain.
AbmIi, »1; i I>oag. Suinn. ISI. IKT.
60
BrSTORY or TBB COLONIES.
[MOKl.
uvl in loQgitwle, as the liii« of the Massachusetts colon/ nin-
ning from east to west, thnt from Narraganset Bsy to tbe Soulh
ScM, WM granted and confirmed to the colony.' The charter in
silent in regard to religious riglitH and privileges.
§ 88. In 1G85, a quo warranto wait issued by King James
against the colony for the repeat of the charter. No judgment
appears to hare been rendered upon it; but the colony offered its
sobtntssion to the will of ttie crown; and Sir Edmund Andros,
in 1687, wont to Hnrlford, and in the name of the crown declared
the government dissolred.* They did not, hnwever, surrender
the eliart^-r; but secreted it in an oak, which is still venerated;
and immediately after the revolution of ltt88, they resumed the
excreisc of all its powers. The siiecessoi-s of thi* Ktnarts silently
sulTcred them to retain it imtil tlic Ameriejin lievolutiun, with-
out any struggle or resistance.' The charter continued to be
maintained as a fundamental law of the State, until tlie year
1818, when a new cunittitution of government was frmnied aud
adopted by the people^
§ 81*. The laws of Connecticut were, in many respects, similar
to those of MassachuBetts.* At an early period after the charter
they passed an act which may be deemed a bill of rights. By
it. It was declared that "no man's life shall be taken away; no
man's honor or good name shall be stained ; no man's person shall
be arrested, restrained, banished, disnieniliered, uor any ways
punished; no man shall be deprived of his wife or children; no
man's goods or estate shall Itc taken away from him, nor any
way endangered under color of law, or cotmtenance of aufJiority,
unlesa it be by virtue or equity of some exjiress law of this col>
ony, warranting the Bame, established by the General Court and
suflicipntly published ; or in case of the defects uf a law in any
particular case, by some clear and plain rule of the Word of
(rod, in which the whole court shall concur."* Thu trial by
jury, in civil and erituinal oasca, WW also secured; and if the
■ S Ilu. CdL 0»7 ta «U; 1 H<ihD«s'> Annili^ 320; 1 Cta\m. Ana»]», m, Ytt;
Uanb. Cokm. di. B, p. IS*.
* I IMnw*'* AnE«l^ IIS, til, 4211, U3: 1 CtuOni. Aaiub, »T. SM. Ml, SH
MS ; I Hutcb. Iliit. U», 40S. uota.
* ItM.
* « Davit. Sunnt. ITl to 17<^ lOS to Ml
* Cttlony La<r> of OaanMiknl, aditioa by Oimbi^ tTtS-ITlS, roUo (Ke« LtudoBj,
p.1.
CH. TIl.J
OOHHBCTHin.
61
court were diaBatisJied wiUi the verdict, they might send back the
jurjr to consider Uio samo a second and third time, bat not fur-
ther.^ The go\-cmor waB t« be ctioacn, as the charter provided,
by the freemen. Every town was to send one or two deputies or
rGprcsontatiws to the General Assembly; but every freeman was
to give his voice in the election of assistantt; and other public
ofticem.' No person was entitled to be made a freeman, nnlefts
Itc owned l3n<bi in fi'eehold of forty shillings' vahie per annum,
or £40 personal estate.'
§ 90. In rpBppct to nffonoes, their criminal code proceeded upon
the same general foundation as that of Max.'uirhuHelts, declaring
liose capital which were so declared in the Holy Soriptnres, and
citing them as authority for this purpose. Among the capital
ofTences were idolatry, hlaaphemy of Falhor, Son, or Holy Ghost,
witchcraft, murder, murder through guile hy jtoisoning or other
devilish practices, bestiality, uodomy, rape, man-stealintf, false
witness, conspiracy a^inat the colony, arson, children cursing
or smiting father or mother, being a stubborn or rebellious son,
and treafl4>n.^
§ 91. In respect to religious oonoerna, their laws provided that
all persons should attend public worship, and that the towns
should sup)>ort and pay the ministers of religion. And at first
the choice of the minister was confided to the major part of the
householders of the town; the church, as such, having nothing
to do with the choice. But in 1708, an act was p«a«cd (doubt-
less by the iulluence of the elci^), by which the choice of minis-
ters U'as vested in the inhabitants of the town who were ohureh-
members ; and the same year the celebrated platform at Saybrook
was approved, which has continued down to our day to regulal«
in discipline and in doctrine the ecclesiastical concerns of the
State.'
S 92. The spirit of toleration was not more liberal here than
in most of the other colonies. No persons were allowed to em<
' Colee; Law* of Ccmwcticiit, edition bj Oraene, ITIS-ITIS. Mb (Saw LandMi),
f>. Z. The pnMtk* wetiniiH] d«<ra to Um ertibUitLineDt of tho aew coartitMioa is
1S18.
* Colony Un of CtmiMctlciit, •dition bj Gmiw, I71I>-1"18, toUo (N(w I^nioii),
p^ V. aa
* M. p. (I. « Id. p. IS.
* U. pp. Mt St. U, no, lit. Tha CoMtllatloa of IBIS hM aide agMt dMafi
btlwi%Iil«uMlpaw«nel Di* mlalilcH aod jpviilM la tOcMuUMl •Sdn.
68
HISTORY OP TBB COLONIffi.
[BOOK I.
body tbeoMelves into church estate without the conMnt of the
QeDora) As)i«mbly, and tlic approbutioo of the nci^ihoring
chiirchos; and no iniiiifttry or church adiiij Hint ration wae enter-
tained or aut]iori7«d separate from, uiid in opposition to, that
openly and publicly observed and dispensed hy the approved
miniRter of the place, except with the approbation and consent
aforesaid.' Quakers, Ranters, Adamites, and other notorious
heretics (as they were called), were to be committed to pritwn
or aont out 6f the colony, by order of the governor and assist-
ftnts.' Nor does tho z«al of |)«rsecution appear at all to have
abated until, in pui-suance of the statutes of 1 William and
Mary, dissenters were allowed tho liberty of conscience withont
molcfltation.*
§ 98, In respect to real estate, the descent and distribution
was directed to bo among all the children, giving the eldest son
a double ahan.- ; conveyancps in fraud of creditors were declared
void ; lauds were made liable to be set off to creditors on execu-
tion by tlic appraisement of tlirce appraisers.*
Tlie process in courts of justice' was required to be in the
name of tJie reigning king.' Persons having no estate mif^it
bo relieved from imprisonment by two sssistsnts ; but if tho cred-
itor required it, he should satisfy the debt by service" Deposi-
tions were allowed as evidence in civil suits.' No person was
permitted to plead in behalf of anotlier person on trial for delin-
quency, except directly to matter of law,* a provision somewhat
singular in our annals, though in entire conformity to the Kng-
lish law in capital felonies. Hills and honds were made as<
signable, and suits allowed in the name of the assignees.'
Msgistrntes, justices of tho peace, and ministers were aotbor-
iiied to marry persons; and divorces a vinctUi> allowed for adul-
tery, fraudulent contract, or desertion for three years. Men and
women, having a husband or wife in foreign parts, were not al-
lowed to abide in the colony, so separat«<l, above two years,
without liberty from tho General Court.
Towns worn required to support public schools under regnla-
1 (Mmj Iawi of Conn., edition bjr Oimd*, 171S-1718, folk) (How LoadoB),
p.».
• li p. K. I H. p. IM.
• l>l. pp. SS. fl. IM. * Id. ^ i1.
• I'i. p. «. » ld.^ IIS.
• Id. p. 39. » H. p. J.
CH. til] CONNECTICUT. 68
tiona similar, for the most part, to those of Massachusetts ; ' aod
an especial maritime code was emicted, regulating tiie rights and
duties and authorities of ship-owners, seamen, and others con-
cerned in navigation.'
Such are the principal provisions of the colonial legislation of
Conneeticat.
> Colooj Lkwi of Coimeeticat, edition b; Oreenr, 171&-I71S, folio (Sew London),
T>. 81.
) Id. p. 70. A dntitu code exirtcd in Ha««kc)iiuetta, enacted in IWS.
64
EISTOBT OP TQE COLONtBS.
[book I.
CHAPTER Via
RHODB RLAKD.
§ 9i. Rhodb Island waa originally BOttlcd by cmi^T&tite from
MaasachuHfiltfl, flceiQR tliithcr ti> cflca|>c fruiu rolifpou8 persecu-
tion; and it alill buantii uf Ru)rcr Willisins as its founder, and
aA the early defender of religious freedom and thn rights of con-
science. One body of tlioin purctiascd the inland which has f^iven
the name to the Slate, and another the territory of tho Provi-
dence Plantationa from the Indians, and began their aettlementa
in both piaoc« nearly nt the game period, namely, in l<iS6 and
16S8.> They entered into »«parat« voluntary associations of
government But finding Uteir associations not snfhcient to pro-
tect t}iem against the encroachments of llassachusetts, and hav>
ing no title under any of the royal patents, tliey nent Roger
Williams to England in 1643 to procure a surer foundation both
of title and government. He succeeded in obtaining from tlio
Earl of Warwick (in 16-13) a charter of incorporation of I'rovi.
denoe riantations;' and also, in lt>-14, a charter from tlio two
houses of Parliamout (Charles the First being then driven from
hia capital) for th« incorjwration of the tovms of Providence,
Newport, and Portsmouth, for the absolute government of them- '
aclvea, but according to the laws ol England.* (a)
§ 95, Under this charter ao osBcmbly was convened in 164T,
consisting of the collective freemen of the various plantations.*
The legislative power was vested in a court of oommissior
I 1 HutcK. HUL 72; 1 Helwcs's Animl«. S3S, 333. tMi 1 rktln. Anaab. SMl'
S70; HulclL CcJL <IS, 414. 415; Xinh. Coba. c^ 3. jv V9. IM; iohirtmm't
JUnrtica, B. 10; » TtvoK. Swnm. 74 t* M: 1 Pftkia'i Hut. it. Mi. ClwlBMa
np, that ProvfdnM «M MtUid In Um bcgiBBug at 1<U; ud Dr. Iloim^ia JSS6.J
(1 CWIm. Aamai, ffO; I Rohda'a Anaah, OS.)
> 1 RuUli. Hill. 5». BOO: Wikh't AppMl, IM: 1 Pitk. Hut. U, 47. 49; t Doi^j
SSHMl Ml
• 1 OwUn. S71, 371; tlirick OdIL 415, tlS.
4 1 CbOm. AumK 373; 1 llatoMta A»aJ» Ht; VaU't Aff^ Itt: t 0«^ ,
OuMnk MK
(a) 1 B.LBiit.BM.lM; AnoU, Hfac «ntb«lt bksd. I. 114.100,
ca. VIII.]
RHODE ISLAND,
«6
of six persona, cliosen bv each of tho four towns then in exist-
ence. The whole executive power Menu W huvo been rested iu
a prpHidcnt and four assistant, who were choeen from the free-
men, and foniied the supreme court for tlie ndiiiinistratioD of
jufltioc Every township, forming wilhin it«t>lf a curporatiou,
elected a coimcil of »ix for the maiingement of its pveuliur affairv,
and for the acttlcment of the sintollcitt dispiit^^.' The council of
Htute of tlie C»nimonwealth 8oon afterwards interfered to suspend
their government; but the distractions at home prevented any
Hcrimis interference by Farlianient in the admiiiist ration of their
^affairs; and they continued to act under their former govern-
ent until tlie restoration of Charles the Second.* That erent
^eema to have given great satisfaction to these plantations, lliey
immediately proclaimed the king, and sent an agent to Kngland;
and in July, 160S, after some opposition, they succeeded in ob-
taining a charter from the crown.* (a)
§ 96. That charter incorporated the inhabitants by the name
of tlie Governor and Company of the English Colony of Rhode
Island and Providence Plantations in New England in America,
nferring on them the usual powers of cor|)orations. The ex-
itivo power was lodged in a governor, deputy-governor, and
ten assistants, chosen by the freemen.* The supreme legislative
authority was vested in a General Aasemblj, consisting of a
governor, doputy-gorcmor, ten assislanta, and deputies froii) the
resijective towns, oboaen by the freemen (six for Newport, font
for Providence, Portsmouth, and Warwick, and two for oUier
towns), t)ie governor or deputy and six assistants being always
present. The General Assembly were authorixed to admit free-
men, choose officers, make laws and ordinances, so as that they
were "not contrary and repugnant unto, but as near aa may be
agreeable to, the laws of thia our realm of England, considering
the nature and constitution of the place and people; to create
and organize courts; to punish offences according to the course
of other corporations in England ; " to array tho martial force of
the colony for tlte common defence, and enforce martial'law; and
■ 1 CWm. AaiuU, 273: t Holmi^* Aniul*, S83.
■ I Chalm. AmimU, 274; 1 Holiiift-i Aimib, SDTi Uahk Colo*, di. S. p. ISS.
■ 1 dwlm. Adb^i, tJi; I Holmisi Anoals. ZVt.
* S ilaa. CoU. (IS to 833; 1 Doug. Somm. 81.
M AraM, HIK. of Rliod* Itluul, L SW i Ptlfttr. But of Ha« EsglMid, It. MJ.
VOL. I. — 8
HIRTORT OP TUB COLOSllS.
[book I.
to oxcrcise other important powora and prcrogativeo. It further
providiNl for a free finhenr on the cossta ; and that all tho inhabi-
tants and children born there should vnju}' all th» liberties and
tmiiiuiiitieft of free and natural subjects born within tho ruulm
of England. It then granted and confirmed unto (hem all that
part oi the king's dominions in New England containing thi-
NorraganRct Bay and the countries and partM adjacent, bounded
westerly to the middle of Pawcatuck River, and so along the
river northward to thu Jteaii thereof, tlii:ne« by a straight line
due north, until it meet tho south lino of )Ius«achii«elts, extend-
ing easterly three Knglish miles to the mo«l ^^astcrn and north-
eoAtern parts of Narmgansot Bay, as tho bay cxt«Dded soutberlj
nnto the mouth of th« river ruiutiog towards Providence, and
thence along tlio easterly side or bank of Uic tiaid river up to the
falls, rallLKl Patuckot Falls, and thence in a straiglit line due
north (ill it rnvvtn the Mossaehusctta line.^ The territory wuy
to be huldcii (u of the manor of East Greenwich in free and com-
mon socage. It further secured a free trade with all tbe other
colonies.
§ 97. But the most remarkable circumBtanee in the oharter,
and that which exhibits tlie strung feeling and spirit of the col-
ony, is ihe provision respecting rvligious freedom. Th« charter,
after n.-«tttng tlio petition of the inlisbitaots, '^that it is much
in their hearts (if they be permitted) to hold forth a lively experi-
ment that a most flourishing civil state may stand, and be best
maintained, and that among our English subjects. vi(A a /uli
Ubtrtif in ntigiau* cwwatfWiwf*, and that true piety, rightly
grounded upon gospe) prtuejples, will giro the best and greatest
Mourity lo sovereignty," proceeds to declare:* "We being will-
ing to encourage the hopeful undertaking of our said loyal
loving subjc^ta, and to secure them in the free exercise and
joynirnt c>f all thoir cinl and reltgioun ri^ts appertaining to^
them as our loving subJM-ta. and to preserre to them thai liberty
in the trno Christian faith and worship of God, which they bai
MM^ with BO much travail, and with peaosfnl mitida and lojra
lobjection to our royal progenitors and oorselrcs to enjoy;
ink b th» iiiMii I htt M(ite«iMi«M**riWb>Mau«>nia*
■Uck y ginm •! lu^ ittlHaa.O)D.«Stoai,nite Bhod* bUnd Im^ i
rfinSuiillflSS.
> a Hafc G>a. US.
CH. Tin.]
RHODE ISLAND.
67
bcN'AUKc 8ome of lite people uid inhabitants of the same colony
cannot, in their priratc opinion, confonn to the public vxcrciBc
ef religiOTi according to the liturgy, form, and ceremonies of the
Church of England, or take or niibftcrilw the oaths and articlee
made and eRtabliiihe<I in that Mialf; and for that the aamc, by
reaaoo of the remote diatanoen of theae plares, will, aa we hope,
be no breach of the nnity and uniformity pRtablished in this na-
tion, have therefore thoug^ht tit^ and do hereby publish, grant,
ordain, and declare that our royal will and pleagure is, that no
penoH wr'Mm the taiJ colony, at any time hereafter, thall hf
tmjfin*f moleited, puniihed, ditquiettd, or ealied in qutatioH for
«Ky difffreae.es m opinion in ntattera of religioH ; but that alt and
' ptr»on and pertont miiy. from time to time and at all time
Broafter, freelg and/ully hare and et^og hi$ and their oiPHjud^-
nunt and eonxdenees in mattera o/rditfiou* eonrerntnent ibroughoat
the tntrt of land hereafter mentioned, they behaving themsclven
peacciibly and ()iiietly, not using this liberty to licentiouiuiesB
tnd profani'ncKs. nor to the civil injury or outward disturbance
of others. "'(d) Tliis is a noble doolaration, end worthy of any
^prince who rules over a freo people. It is latncntablu to rclloct
ow little it comports with the domestic persecutions authorized
Ihfl aante monarch during his profligate reign. It is still
'more lamentable to reScct how little a similar spirit oi tolera-
tion wa» encouraged either by the precepts or examples of any
other <rf the New England colonies.
§ 9S. Rhode Island enjoys the honor of having been. If not
the first, at least one of the earliest of the colonics, and indeed
of modern .States, in which the liberty of conscience and freedom
of worship were boldly proclaimeil among it* fundamental laws.*
If at any time afterwards the .Slate broke in tipi>n the broad and
rational principles thus established, it n-as but a momentary de-
viation from (he «ettlfd eoiirni' <tf it^ jwilicy.* At the present day,
acting under thi8 very charter it continues to maintain religious
freedom with all the sincerity and liberality and Keal which be-
iged to its founder. It haa been supposed, that in the laws
I by the General Assembly first convened under this charter.
< 3 Ilni. ColL SIS. • Walah'* An<Ml. tSt.
• Hotob. CoU. 413. tU; I Chihn. AnuU. !;«. 3S1: 1 HolraHTt AamCi, 3SS.
{>J AtMU, HiM. cf BtMi)« Utud, I. W!.
68
BISTORT OP THE COLOKIES.
[book I.
(1044), Roman Cntholics were excluded from the pririlegos of
frMmen, But this hits been very juatlj- doubted ; and, indeed, if
well founded, the act would deserve all the reproach which has
been heaped upon it.' The first laws, however, diMilared that no
froeinaii shall be imprisoned or deprived of his freehold, but by
tho judgment of his peers or the laws of tlte colony ; and that no
tax should be imposed or required of the colooists, but by the
act of the General Aasvmbly.'
$ 99. It is said that the ^'nural conduct of Khodc Island si'vnis
to have given entire satisfuctiun to Charles the Second during thu
residue of his ix.Mgu.^ L'puu the accession of James the iidiabi-
tants were amon^ the first to offer their congratulations, and to
ask protection for their chartered rights. That monarch, how-
BTor, disregarded their riMjueAt. They were accused of a viola*
Uon oi tbeir charter, and a quo warranto was filed against them.
Tliey immediately resolved, witliout much hesitation, not to con-
tend with the crown, but to surrender Uteir charter, and pusaed
an act fur that purpose which was afterwards suppressed.* In
Decenilier, 1(586, Sir Edmund Andres, agreeably to his orders,
disaolvcd their government, and assumed the administration of
the colony. I1te Ilevoluliun of 1688 put an end to his power;
and the colony immediately afterwards resumed its charter, and,
though not witliout some interruptions, continued to mnintutn and
exercise its powers down to the period of the American Revolu-
tion.^ It sliil continue* to act under the same charter, as a fun-
damental law, it Iteing the only State in tlio Union which has not
formed a new constitution of government It seems, that unlJI
the year 1696, tJie governor, assistants, and deputies of the towns
sat together; but by a law then passed they were separated, and
tlic deputies acted as a lower house, and the governor and assist-
ants as an upper house.*
1 On tkii Mfajwt, u* 1 ClulniMs'i Anult, 37S, tU; aad Dr. HoImm's vdnaUe
mu 10 hi* Akiwl*^ *ot i. p. 334^ tad U. ^ Ml; Hattk. CoIL 411, US; WaUi'a
Appnl 4S9 to (39.
■ 1 Chain. AuMb, ITS: 1 Robne*'* Auafa, S3<i B. bksdColoD; Un (1744),
• I Chilm. A&mK !78.
• 1 Cbilm. AsnaU, 2M, 38t: S Dong. Sdiiiib. SS.
• 1 rawlm. A^IMl^ nt, ST* I 1 HolMM'a Asiiab. 41», 4a», iSS. 4(3; 9 Doog.
Ssnun. ti. 37*1 Dvnnet'* Dsfono*, 1 AsMrieui Tnc«^ 7.
• a. liked 0*>ini7 Un {ITU), Si.
CH. Till.]
BnODK I8LAM0.
69
$ 100. In reviewini; th« colonial Icf^islation of Bhode Island
Rone pecaliartticfl are diflcumibk-, tJiuuirh tho funeral Hjstem is
like thut of the othvr partit uf New England.' No penoiu bat
thoKC wlio were Admitted (rceinen of the culoiiy wvrv allowed to
vote at tilcctioae, tuid tiwy might do it in per»on or by prosy;
and none but freemen were eligible to office. WIHs of real ca-
t*te were required to have three witnetwwfj. The pn>batc of will*
and the granting of administrations of {lentonnl estate were com-
mitted to the jurisdiction of the town councils of each town in
the colony, with an appeal to the governor and cotmcil na an-
preme ordinary.* Every town was a corj«irate body, entitled to
choa«e its officera, and to admit pei-aona aa fn^men.* Sports
and lahor on Sunday were prohibited,* Puivhases of land from
the Indiana were prohibited.* By a formal enartment, in 1700,
it was declared, that in all actions, matters, causes, and tilings
whataoever, where no [fsrtieular law of the colony ia made to de-
cide and detennine the same, then in alt such cases the lawa of
tSogland shall be put in force to issue, doterroine, and decide the
aamv, any usage, custom, or law to the contrary notwithstand-
ing.* About the aamc period the KngHxh navigation laws were
required, by an act of the colonial legislature, to bo executed.'
Twenty years' peaceful possession of lands, under the claim of a
title in fee-simple, was declared to give a good and rightful title
to the foe;^ and thus a juat and liberal effect waa given to the
statnto of limitations, not as a bar of the remedy, but of the
right Tlie acknowledgment and registration of conveyances of
lands in a public town registry were provided for. The support
of tlie ministry was made to depend upon free contributions.
Appeals to the king in council, in cases exceeding X800 in
value, were allowed.* A system of redress, in cases of abuses
of property devoted to charitable uses, waa established;"* fines
and common recoveries were regulated; and the trial by jury
established. The criminal code was not sanguinary- in its enact-
ments; and did not affect to follow tlie punishments denounced
in the .'vripture atrainst particular offences." Witchcraft, how-
ever, was, as in the common law, punished with death. At a
t K. Iikad CoL I^wi (1744), pp. I, 147.
> 14. p^». Md. IS.
■ I>L 38. ' Id. tt.
* liL ST. ISS. w u. loa.
■ Id. p. 1, 4.
• Id. *.
• M. 44.
■■ Id. lis.
TO
BISJOBY or TUB COLOMEa.
[book I.
lttt«r period, lantU of peraonii lif-ing out of the colony or conceal-
ing themnelres therein were made liable to the papneut of their
debts.) In reepect to Uie deooent i>f real estates, the canons of
the common law were adopted, and the eldest son took the whole
inheritance by primof^vuiture. This systvm was for u short
period repealed by an act (4 A 5 Georeo I., 1718) which diridod
the rstatc umon^ uH the children, giving the eld«8t son • doublo
sliaro.' But tbe common law was soon ofterwanls (in 1728) re-
instated by tlic public approtxition, and so remained to rcgukt«
descents until a, short period (1770) before the BevolutioiL Con-
tracts for things ulwve the value of ten pounds were required to
be in writing; and conveyances in fraud of creditors were de-
clared roid. And we may aUo trace in its legiitlalion pr<:iWsion
respecting hue and cry in cases of robbery; and of forfeiture in
cases of KOcidenUtI death, by way of deodand.*
§ 101. We have now finished our review of all tlie sueceseivo
colonics CHtahlishcd in Now Kngland. The remark of Chalinera'j
is in general well founded. "Oripnally settled,'* wye he,* "bjr J
the same kind of people-, a similar policy naturally rooted in all
the colonies of New England, llieir fonns of goremment, their
laws, their courts of justice, their manners, and their religious
toneta, which gave birth to all thcso, were nearly the same."
Still, ho«-cver, the remark ia subject to many local qualifica-
tions. In Rhode Island, for instance, the rigid spirit of Puri-
tanism softened don'u (as we have seen) into general toleration.
On the otiier band, the common-law rules of descents were ad-
hered to in its policy with singular xeal, down to the year 1770,
as necessary to prevent the destmction of f ami ly estates, whi le the
neighlxiring colonies adopted a rule dividing the inheritance
among all the children.'
§ 102. One of the most memorable circnmstances in the his-
tory of Xow England is the early formation and establinhment of
a oonfcderntion of the colonics for amity, offence and defence,
and mutual advict^ and assistance. The proj(>ct was agitated as
early as IGUl; but difficulties having occurred, the articles ol
1 K. UUwl CoL Un a;4l\ p. 193.
* OalMj lam of Rhode Idud (edU. 171«. prutad at OoaUm), fip,M,H.
* K. UUad Ookor I«» (HIV), pp. t, 8.
* 1 Cbalm. Atamlt, SMl
» QudMt K caHaa, S Patcn'i Sup. Ct. Ibip. U.
CH. nil.]
BHODB ISLAKD.
•n
.unioD wen not finally adopted until 1643.'(4i) In the month of
tU&y of that year, tbo colcmies of Maeaoohusctte, Connecticut,
New Haven, and i*lymoiith fonned a confederacy by the natne
of the United Colonics of New Enjiland, and entered into a per-
petual leagDe of friendship and amity, for ofFencn and defence,
and mutual udvice and succor. The chained of all want, offeii-
aivf and defL-asivc, were to be borne in conunon, and according to
an apportion ment provided for In the articles; and in caae of
iuvasiun of any colony, tbo utbera were to fumiab a certain pro-
porliuii of armed men for ita aKsistancc* Commissioners, ap-
pointed by each colony, wcro to meet and dctcnninc all affairs of
war and peace, leuji^uca, aids, charges. At:,, and to frame and
catabliab ogrt-emenUi and orders for otlier gvncrul intercsto.
This uniou. ao imjiortant and necessary for mutual derciicc and
OMistanoc during the troubles which then agitated the parent
^Dountry, was not ol)ject4xl to by Kin^ Charles the Second, on his
Btoration; aod with some few alterations, it subsisted down to
1686, when all the charters were prostrated by the authority of
Kin^ Jamo».* Rhode Island made application to be admitted
into this union, but was refused, upon the ground that the terri-
tory was within the limits of Plymouth colony. It does not
appear that subsequently the colony became a party to it* (6)
> I HolniM'i Ann*bv U9. STO; 1 Winthrop* Jour. SS7, 28i.
• 3 Ilu. Ce-IL 1 to «; 3 Winttiro|>*> Jour. 101 to lOS; 1 Hatch. IIM. lit, IH.
• 1 Holnw'* Annali, S70 and natei 1 Hnl«k. Blit. I3S, aole; 9 11a. CoU. 7,
• 1 Holmo'i Anuti, £87 ud note; 1 Hutch. U>«t. IM; 2 Hat. Coll. », 100.
(«) ftitnj, HUL of K«w Fn|cIui<I, I. «i>il it* njcetia«u« giren in Hutch. CoU.
«aO. S24, 217.
It) Th« «{>f Uauwa of Eliodc UmuI
72
nisTonr o? tbr colokigs.
[•OOK I.
CHAPTER IX.
HARYLAHD.
)8. The proriocc ofMaryland waa included originally in
the pat«nt of th« Southern or Virginia Company ; and upon the
diMolution of that company it reverted to the crown. King
Charles the FirHt, on the 20th Juno, 1632, granted it by patent
to Cceiliua Calvert, Lord Baltimore, tht- son of George Calvert,
Lord Baltimore, to whom the patent w«a intended to hiive been
made, but he died before it wa» executed.' By tlie ehurtor the
king erected it into a Province, and gave it the name of Horjr-
tand, in honor of his quei-n, HvnrieUa Maria, the daughter of
Ilenry the Fourth of Franev, to be held of the crown of England,
he yearly, forever, rendering two Indian arrovra. The territory
was bounded by a right line drawn from Watkin'a Point, on
Chesapeake Bajy to the ocean ou the east, thence to that part of
thu estuary of Delaware ou the north which Heth under the 4(Hh
degree, where New England is tenninatcd; thence in a ri)^t
line, by the degree aforesaid, to the meridian of the fotmtain of
Potonuu:; thence following its course by the farther bank to its
confluence with the Chesapeake; and thence to Watlcin's Point'
§ 104. llie territory thus severed from Virginia was made
immiMliately subject to the crown, and was granli^ in full and
absolute propriety to Lord Baltimore and his heii-8, saving Ihu
allegianco and sovereign dominion to the crown, with all the
rights, regalities, and prerogatives, which the Bishop of Purhain
enjoyed in that palatinate, to be held of the crown m of Windsor
Cantle, in the county of Berks, in free and common socage, and
uotineapite, or by knight 'it service. The charter further pro-
vided that the proprietary should have authority, by and with tbo
consent uf the freemen, or their delegates osscmbk-d for th« pur-
pose, to make all laws for the province, "so tliat such laws be
) 1 HoImm'i Atib. 21S : 1 CluJni. AaaaK 901. MS; Bmmb'i U«« «f MurlM4
(llti): S DoQg, Samm. SSS, Ac.
*1 lUt. CoO. t3rtoSa7iiaiiliD.Aiuuli^S0SiCliut«narK. &.ProTJMe^«ak
Loniiui, 17M.
CH. IZ.]
MARYLAND.
78
consonant to reason, and not repugnant or contrary, but u fur
u coBvenicntly oiijzht be, agreeable to the laws, etutut«K, cus-
tonu, and riglitii uf this oiir realm of England."' The pro-
prietary was also vc«ted with full executive power; and the
estublishmunt of courts of justice was provided for. The prupri-
etary was also authorized to levy subsidicH, with the asiient of
the people in assembly. The inhabitants and tlieir children
wer« to enjoy all the righta, immunities, and privileges of sub-
jecta bom in England. The right of the advowaons of the
churches, according to the cstublishmcnt of England, and the
ri^t to create manors and courts haron, to confer titles of dig-
nity, to erect porta and other regalities, were expressly given
to the proprietary. An exemption of the colonists from all tal-
liages on their goods and estates, to bo imposed by the crown, was
expressly covooanted for in perpetuity; an exemption which
hod been conferred on other colonies for years only.' License
was grunted to all subJL-cts to transport tlicnu^ulvt's to (he Pror-
ioce ; and its products were to bo imported into England and Ire-
land, under such tAxca only as were paid by other subjiH^tn. And
the usual powers in other charters to repel invasions, to sup-
press rebellions, Ac, were also conferred on the proprietary.
§ 105. Such is the sulistance of the patent. And Chalmers
has with some pride asaertcd that "Siaryland has always en-
joyed the unrivalled honor of being the first colony which was
erected into a Province of the Gnglish Empire and governed reg-
ularly by laws enacted in a provincial legislature."' It is also
observable that there is no clause in the patent which required
any transniisaion of the province laws to the king, or providing
for his approbation or assent Under this charter Maryland con-
tinued to be governed, with some short intervals of interruption,
down to the period of the American Revolution, by the successors
of the original proprietary.*
§ 106. The first cmi^rration made tmder the auspices of Lord
Baltimore was in Kovombcr, 1682^ and consisted of abuiit two
hundred gcntlL-men of cousiderablo fortune and rank, and their
adherents, being chiefly Roman Catholics. " He laiil the founda-
tion of this province," says Chalmers,' "upon the brood basis of
■ ] Hai. C»n. SI7. Ac; 1 Clulni. Aansl^ Mt : Hinb. folon. di. 9, p^ ««.
■ 1 Cbalnun'i Anaak, £», 104, SOS. ■ Id. 9W.
74
HISTORY OP ras ooLoinra.
[boos t.
Mcuritjr to propertj and o€ freedom ot reli^on, graoting in &!>•
solute fee &ftjr acres of land to ererr eroigrant; estsbtiahiog
Cbristianitj ufrnM^bljr to the old conunoa lav, of rbicb it ia a
part, without alluwiiig pre-eminence to any particular sect. The
wisdom of bis choice suun converted a drear}- viidcrneas into a
prosperous colony." It is certain!}' vcnr honorable to the liber-
ality and public spirit of tlie proprictarv, that he should have in-
troduced into his foiidainental policy the doctrine of general
lolcralion and e((uality among Christian sects {for he does' not
appear to hare gone further); and have thus given the earliest ex*
ample of a Icgiiilator inviting his anbjects to tlie free indulgcnoe
of religious opinion.* This was anterior to the settlonent of
Rhode Island : and therefore merits the enviable rank (rf being
the first r«co^ition among the colonists of the glorious and
indefeasible rights of conscience. Rhode Island seems, without
any apparent consciouiinetis of co-operation, to have gtnie further,
and to have protected an universal freedom of religious opiuiim
in Jew and Gentile, in Christian and Pagan, without any dis-
tinction to be foond in its le^slation.'
§ 107. The Tirst legislative assembly of Uaryland, held by tJw
trevmen at large, was in 1634-16S5 ; but little of their proceed- '
ingB is knuwn. No acts appear to hare been adopted until 1688- !
1639, (a) when provision was made, in consequence of an increase
of the colonists, for a rcprtmcntative assembly, called the House
of Assembly, cliosen by the freemen ; and thu laws passcNl by the
assembly, snd approved by the proprietary or his lioutenant, were
to be of full force. Tlic assembly was afterwards divided into an
upper and lower house. At the same ses^ou, an act, which may
be considcn-id as in some sort a Magna Charts, was passed, de-
claring, among other things, that "Holy Church within this-
provinoe shall hare all her rights and prerogatives;" "that the
inhabitants shall have all their rights and liberties according to
the great charter of England ; " and that the goods of debtors,
• 1 ChUn. AnnU*. ttS, 21S, Sl«, 363.
(a) That b to nj, noM ware J^nad
■pan b;r the imtmVj uid th» pwptiitoty;
but MU kpFM* la hKrc bMa i«mm1 I17
tbe uannUy whkk wmt T*j*cUil hj tbe
pn>pri«toi7, uri othna «mv profNMd bj
itM ptofiieUiy whkh th* ■acfnUr tf-
AiMd to aaofC Sm Btmntm, Hntof; of
■ TV«U]'* ApfMl. 4X9. (Tota B.
IbiylwML S*Sw MW-31S. Tkfa aMlwrl
ooa)«etaw^ ttasgh tbi neofd* tm MlaM
on Uw antofct, tluit Ui* dittMlt)^ btiviwn
tti* fnfhtUrj tttd the ■nunibly «w tlMt
neh«fai»d lb* ri^ M Trrijlast- Ihi
CIL IX.]
HaRYLAKD.
75
if not sufficient to pay tbeir dcbte, fthall l>o sold and distributed
pro rata, saving dvbis to tho proprietary.' In IG49 an net wa«
poued, puiiixhiiif; blnsplioui^* or denying the Holy Trinity witli
dcutti Biid eoiiriMcatioQ of goods and laudti;* and, strangely
unuuffh after sucti a provision, in the same act, after a preamble,
reciting that tliv cvnfining of conHcience in matters of rcli^on
ball) frequently fallen onC to lie of daugeroua «)nse<)urnce, it is
•'niicted that no pei-son "professing to beliere in Jesua Christ"
lihall he molested for or in respect to his religion, or the free
exercise thereof, nor any way i;omi)elled to the belief or exercine
of any other religion.* It seema nut tu have been even imagined
that a belief in tike divine mission of Jesus Christ could, in the
eyes of any »e<:t of Christians, hv (piite coiiHisti^nt with tho de-
nial of the Trinity. Thia act vraii vunfirmt-d among tho perpetual
taws in 1676.
§ 108. The legislation of Maryland does not, indeed, appear
to have afforded an uniform protection in respect to religion,
such as the original policy of the founder would seem to indicate.
Under the protectorate of Cromwell, Roman Catholics wore ex-
pressly denied any protection in the Province; and all others,
"who profess faith in God by Jesua Christ, though differing in
judgment from the doctrine, worship, or discipline publicly held
forth," were not to be restrained from the exercise of their reli-
gion.' In 1696 tho Church of England was established in tho
province; and in 1702, the liturgy and rites and ceremonies of
the Church of England were required t« b« pursued in all the
churches, with such toleration fur dissentcra, however, as was
provided for in tltc act of 1 William and Mary.* And the in-
troduction of the test and abjuration acta, in 1716, excluded all
Roman Catlioli<.-s from office."
§ 109. It appears to have been a policy adopted at no great
distance ot time after tho ecttleniont of tJie colony to provide for
■ BtMm'R U«« ot MtryUnd, cL 3, of 1838; 1400, ch. 1; 1 Manti. CoUwi. ftc
ck. I, ^ 7S; 1 Chsliu. AnnalB, 313. SIP. SSO. 23&.
■ 1 Chalm. Aniwk ao. MS: Daixni'i L*n of Harykod. 1«49.
• BuuD** Uw» «f M.t7l«iul. 1849, eh. I; 1 Chuliii. A>in>J\ S18, £16. 2M.
• BoMiii'a Un of Uuybnc^ l<M, cli. I; Htnh. Colon, cb. S. p. 73; Cbabn.
Ana. 21S, S3S.
• B»Mn'i Um ot HinrUnd. ITOS. ch. 1.
• B«on-i Uw <t MujrUnd, 17M, di. f; Vkbh't Appwl, 4», »; 1 nobam't An-
arit, 179, t8».
76 HISTOBT Of TSE COLONIES. [BOOK I.
the public registration of conveyances of real estates.^ In the
silence of the Bt8tut«-book until 1716, it is to be presumed that
the system of descento of intestate estates vas that of the parent
country. In that year an act passed,' which made the estate
partible among all the children; and the system thus intro-
duced has, in its substance, never since been departed from.
Uaryland, too, like the other colonies, was early alive to the
importauce of possessing the sole power of internal taxation ;
and accordingly, in 1650,' it was declared that no taxes should
be levied without the consent of the general assembly.
§ 110. Upon the Bevolntion of 1688, the government of Mary-
land was seized into the hands of the crown, and was not again
restored to the proprietary until 1716. From that period no
interruption occurred until the American Revolutioo.*
1 Bacon'* Lawi of Mujrluid, IB74.
* Baoin'i Uw« of UnjUnd. iriS, eh. W.
* Bacon's Uwb of Uiryland, 1860, cb. 2S; 1 Cbalm. Ann. 12a
* BwiOD'i Um of HaijUnd, 1SS8, 1716.
CH. X.]
KEW TOKS.
77
CHAPTER X.
NEW TOBK.
§ 111. New York waa oriKiu&Hy settled by emigrants from
HutlaDd, at \east as t-arly ns 1614.' Tradtn^-liuuscs were estab-
lished on Hanhattau Iitland by Uicm, uudor tlic auspicee uf the
Dutch We«t India Company, about 1621.' But ihe permanent
establishment of a Dutch colony there docs not appear to have
been fixed until about lti29, when it seems to hare acquired the
[name of the Now Nctberlands.* But the English government
[seems at all times to baTO disputed the right of the Dutch to
make any settlement in America; and the territory occupied by
them waa unquestionably within the chartered limita of New
England granted to the council of Plymouth.* Charles the Sec-
ond, soon after his restoration, instigated as much by personal
antipathy as by a regard for the interest of the crown, deter-
mined to maintain his right, and in March, 1664, granted a pat-
ent to his brother, the Duke of York and Albany, by which he
conveyed to him the region extending from the weateni Xmak of
tlie Connecticut to the eastern shore of the Delaware, together
with Long Island, and conferred on bim the powers of govern-
ment, civil and military.^ Authority was given, among other
things, to correct^ punish, pardon, govern, nnd rule all subjects
that should inhabit the territory, according '" such laws, ordi-
nances, A'c., as the Duke sliuuld establisli, so always that the
fltme " were not contrary, but n« near as might be agreeable to
the Iau-8 and statutes and (rovcriuiient of the realm of England,"
saving to the crowu a right to hear and determine all appeals.
The nsual authority was also given to use and exercise martial
law in cases of rebellion, insurrection, mutiny, and invasion.*
> 1 Cbalman'* Ano«U. Ml, KS, * Id. S70. ■ Ibid.
• 1 CiMlnMs'* Juuait, M8, SSB, B7l\ 671; UHih. Cttko. <h. 5, ii. 143; 1 Dwig.
SoBun. SSO, kc
• 8ndtti'« y»w Jmej. IS, fi9; 1 CWnNnTi Aanal^ ITS; SnHli'i Kmr Yotk. p. »
[10]: flmitli'i Mew Jtnaj. ff. 110 to IIS.
■ I ctrpy ttrm th* r*clul ot il In Scnith'm HlMcty «f H«« 3*n»j, In Ota (umdw of
17M of tb* proTtaoN ofKut and Wtst ientj.
78
BISTORT OP TQE COLOStES.
[BOOK I.
A part of this tract vns attcnrards conveyed by the Duke, by
de«tl of leaae and rc1c««c, in June of Uic some year, to Lord
Berkeley und Sir George Carleret By (lii» ktter grant they
were entitled to all the tract adjoocnt to New {ihigiand, lying
westward of Long Island and boimded on the east by the main
8ca and partly by Hudson's River, and upon the west by Dela-
ware Bay or Kiver, and extending southward to the main ocean
as far as Cape May at the month of Delaware Bay, and to the
northward as far a« the nortliernmost branch of Delaware Bay or
River, which is 41 degnx^s 40 minutes latitude: which tract was
to be called by the nante of Nova Ciesaroa, or New Jersey.' So
that the territory then claimed by the Dutch as the New Nether-
lands was divided into the colonies of New York and New Jersey.
§ 112. In September, 1664, the Dutch colony was suqtriacd by
a British armament which arrived on the coast, and was com-
pelled to surrender to its authority. By the terms of the capit-
ulation the inhabitants were to continnc free denizens and to
enjoy their property. The Dutch inhabitanta were to enjoy the
liberty of their conscience in divine worship and church disci-
pline, and their own customs concerning their inheritances.'
Tbo government was instantly assumed by right of conquest in
behalf of the Duke of York, the proprietary, and th« territory
was called New York. Lilierty of conacioncc was granted to all
acMlers. No laws contrary to those of England were allowed;
and taxes wprp to be levied by anthority of a general aaaerably.'
llie peace of Breda, in 1667, confirmed the title in the conquer*
ors by the rule of vtipomdetu.* In the succeeding Dutch war
the colony wa,i reconquered ; but it was restored to the Dnke of
York upon the succeeding peace of 1674.*
§ lis. As the validity of the original grant to the Duke of
York, while the Dutch were in quiet possession of the country,
was deemed questionable, be thouglit it prudent to nsk, and be
accordingly obtained, a new grant from the crown in June, 1674.*
It confirmed tlic former grant, and empowered him to govern the
■ ScnIU)'* N>w Vork. 31. 82 [10, nj: 1 Ctulwn'i Ancibi, CIS.
* flnritk'* S'flW Yorli. 41, ti [M, SO); I ChdwoVt Ann. £74; Siullli** Saw J*mj,
M, 43. il; S Dong. Bumai. ttS.
* 1 ClulmeB'* AnnaK STS, 577. UTS, iVt; Boith'* N>« Itnvj. 44. 48.
« 1 C)uIiBtn>'» Annali. IJi ; S Dooff. SouH. 133.
* 1 ClialBim'* Atiul*. &79 ; 1 Hulmra'* Inadi, »4. S44.
* Smitli-a NV« York. «1 |»]; 1 CUln. AsmIi, 9TS>.
CH. X.]
REW TOBK.
79
inhabitants bv snch oniinancps iw he or his assigns should estab-
lish. It authorized him to administer justice according (o the
l»vr» of England, allowing an appeal to the king in cotini^il.* It
prohibited trade tliither without his pemii»Rion; and aliovcd the
colonists to import merchandise upon paying cuatoms according
to the laws of the reahn. Undsr this charter he nited the Prov-
ince until his accession to the throne.' No general assembly was
called for several years ; and the people having become clamorous
for the privileges enjoyed by other colonists, the governor was,
in 16t^2, authorized to coll an assembly, which was empowered
to make laws for the general regulation <A tho Stat*.', which, how-
ever, were of no force without the ratification of the proprietary.*
Uiwn the Revolution of 1688, the people of Now York immedi-
ately took side in favor of the Prince of Orange* From this era
they wen! doemed entitled to all the privilegea of British sub-
jecta, inhabiting a dependent province of the state. No charter
vas Bubsoqucntly granted to them by the crown ; and therefore
they derived no peculiar privileges from that source.'
§ 114. The government was henceforth administered by gover-
nors appointed by tho crown. But no effort was made to conduct
the administration without tlie aid of the representatives of the
pottle in general assembly. On the oontrary, as soon as the
first royal governor arrived in IfilH, an assembly was called
which passed a onmber of important acts. Among others was
an act virtually declaring tlmir right of representation, and their
right to enjoy the liberiien and privileges of Englishmen by
lia^ft Charta.* It enacted that the supreme legislative power
shall forever reside in a governor ond council appointed by the
crown, and the people by their reprcsfulatives (choseu in the
manner pointed out in the act) ctMivcned in general aaeembly.
It further declared that all lands should Ik! held ill free and com-
mon socage according to tlie tenure of East Ureenwich in Eng-
> 1 CUlam** Anatli, fi?t>, SBO.
* 1 Clubncn'* Auotlt, SSI, iSt; Snitk't V*w York, 133, 135, 1S« [72. 76).
I CiMlni. AsiMk 5S4. Ki; SKiUi'i New Yofk. 137 |7S]; 1 HoUdm'i AmwIi^
In tlu jmu ins ocrtain finiduiiraul icgoJatJoni nm [luKd by tbo Icffislnlartv
■Md vtll Ik fmad tit ut A^KOiliz to the »Mxaid Totiwa «l lb* oM aditioa ol tiM
Kf * York Law*.
* 1 HoliDM'a Anult. 139; Swlth't Stm York, SB.
* I CUbi. AniMli, its. SM. »1, S82.
' I BolMt'a Aaiuit, «Ui Soritk'* New York. 127 (7S> 7«] ; Act* «l IMl.
M
BISTORT OF THE COLaXlBS.
[BOOK!.
land ; that in all criminAl owes there should be a trial by jury;
ttuit c«tAt«8 of femes covert should bo conveyed only by deed
upon privy examination; that wills in writing, attested by three
or more credible witnesses, should be sufHciont to pass lands;
tliat there should be no fines upon alienations, or escheats and
forfeitnres of lands, except in caaca of trvaaon; that no person
sliould hold any oflice unless upon his appointment he would
take the oaths of supremacy, and the teat prcoeribed by the act
of Parliament;* that no tax or talliugc should be levied but by
the consent of the general assembly ; and that no ]>er8on profess-
ing faith in Jrous Christ should be disturbed or qucstiontMl for
different opinions in religion, witli an exception of Roman Cath-
oliea. The act, however, wa» repealed by King William in
1697.* Another act enabling persons who were scrupulous of
taking oaths, to make in lieu thereof a solemn promise, to qualify
tbcm 08 witnesses, jurors, and oOicer». In the year 1C>D3, on act
was passed for the maiutcnance of miiiiatera and churches of the
Protestant religion. New York {like Massachusetts) seemed at
all times determined to suppress the Romish Church. In an act
passed in the beginning of the last century it was declared that
every Jesuit and Popisli priest who should continue in the colony
after a given day should be condemned to perpetual ImprisoD*
ment; and if he broke prison or escaped and was retaken, he was
to be put to death. And so little were the spirit of toleration
and the rights of conscience understood at a much later period,
that one of her historians ' a half-century afterwards gave this
excluBi<m the warm praise of being worthy of prepetuat duration.
And the constitution of New York, of 1777,* required all persons
uatnralizod by the State to take on oath of altjuration of all for-
eign allegiance, and subjection in all matters, eedetiaHieal as
well OS eiviL This was doubtless intended to exclude all Catho-
lics, who acknowledged the spiritual supremacy of the Pope,
from tlie benefits of naturalization.* In examining the subse-
quent legislation of the Province, there do not appear to be any
very striking deviations from the laws of England ; and the com-
■ ] Holme*'* Ataula. 4U; Snltti'* V*w York, 137 CO, 76): Pror. L)w*«f I«>I.
* I Hotow*'* Attiuh. at; PkMim Un o( ie»li SmiUi'a Now Vrnk. IS7 [7«|i
3 Kmt'* Conn. Lect- SS. pr^ ^ *>•
* Kr. Soddi. 4 An. 12.
* 9 Kmft Cetam. Led. 39, pp. S3, OS.
CH. X.] NEV TORE. 81
mon law, beyond all question, waa the basis of its jurisprudence.
The common-law course of descents appears to have been silently
but exclusively followed;^ and perhaps New York was more
close in adoption of the policy and legislation of the parent coun-
try before the Revolution than any other colony.
1 1 do not find bd; act respecting the distribatioo of inteitats Gstat«s in the
stjttate-booli, except tliat of 1987, which seema to have in view ool; the distribution
of personal estata snbatantiaUj on the basis of the ftatnte of diitribntion of Charles
the Second.
VOL. 1. — 6
82
BISTOBT OP THE OOLONIBS.
[book 1.
CHAPTER XL
NEW JfflSET.
§ 115. New Jgbset, as v« huvc alrc*<Iy seen, was a part of
the territory ^n^anted t« tho T)uke of York, aad was bjr him
granted, in Juno, 16&4, to Lord Berkeley aud Sir George Car-
teret, with all (hi! rights, royalties, and powers of govenmicnt
which hv himself possessed.' The proprietors, for the better set-
tlcmviit of tho territory, agreed in Fehniary, 1664-1C*>.5, H|ion a
oorifitittitton or concession of g:overninent, which was so much
relished thnt the eiistem part of the prm-ince soon contained a
considerable population. By this conotitiiti'm it was provide
that the executive government should be administered by a gov-1
emor and council who should have the appointment of officers;
and that there should be a k^slative or general asHembly, to bo
composed of the governor and council, and deputies chosen by
the people. The general assembliee were to hare power to make
alt laws for tho government of the Province;, so that "the samei
be consonant to reason, and as near as may be conveniently
agreeable to the lawa and customs of his Majesty's realm of Eng-
land ; " to constitute courts, to levy taxes, to ereet manors and
ports and incorporations.* Tho registry of title-deeds of land
and the granting thereof, as a bounty to plantera, were also pro-
vided for. Liberty of conscience was allowed, and a frcvdom
from molestation guaranteed on account of any difference in
opiniun or practice in matters of religious concernments, so al-
ways that tho civil peaoo was not disturbed. But the genenl as-
sembly were to be at liberty to ap)>o{nt ministers and establish
their maintonunce, giving liberty to others to maintain what
ministers they pleased. Every inhabitant was bound to swear or
subscribe allegiance to the king; and the general assembly mi^t
grant naturallzaticHi.*
> ItSwlM. Ana. ei>: Smith'i IT«« York. f>. Sl [11]: Smtlli') K. itrmj, Mj,^
Huik Cokm. it; h> I«0 : a Doug. Sunn, tto^ ke., SSI. 347, 4e.
* SMltb'* N«« Itnnj, < Appit. 611 ) 1 Chalin. AOBilt, «U.
• Svlth'a Sim imtj. 51S, iH.
cu. n.]
NEW JERBBT.
83
§ 116. Tbia constitution continued until the Prorince was di*
Tided, in 1676, between the proprietors. By tJiat di^neion Eaiit
New Jeniey was aMi)^cd tu Cart«rct, and West New Jersey to
William Pvnn and otliore, wlioliad ptirchiwed of Lord Berkeley.'
Carteret then explained and cunfirmvd tlie furnicr concessions for
the territory timn exclusively belonging to hinwelf. The propri-
etors also of Wo»i Jersey drew up another set of conceft8ioii« for
the settlera within that territory, lliey contain wry ample priv-
ileges to the peopla It was declared that the common law, or
faodamental rights and prinlegon of West New Jersey therein
■tftted, are to be the foundation of government, not aherable hy
the legislature. Among these (luidamentals were the following:
"That no man, nor number of men upon earth, hath power or
authority to rule over men's consciences in religious matters; '"'
that no person shall b« anyways called in question or in the least
punished, or either, for the sake of his opinion, judjjment, faith,
or worship towards God in matters of religion; that there shall
be ft trial by jury in civil and criminal cases; that there shall bo
a general aiwembly of reprixicntatives of the people, who shall
have power to provide for the proper administration of the gov-
ernment, and to make laws, so ** that the same be, as near as may
be conveniently, agreeable to the primitive^ ancient, and funda-
mental laws of England."'
§ 117. Whether these concessions became the general law of
the Province seems involved in some oViscurity. There were
many diflicullies and contests for jurisdiction between the gov-
ernor* of the Duke of York and tlie proprietors of Uie Jerseys;
and these were not settled until after the Duke^ in 1R80,* finally
snrrendered all right to I»oth by letters-patent granted to the re-
spective prt^rictors.* In 1681, the governor of the proprietor of
West Jersey, with the consent of the general assembly, made a
frame of government embracing some of the fundamentals in the
former concessions.* There were to Iw a governor and council,
and a general assembly of representatives of the people. Tlic
general assembly had tJie power to make taws, to levy taxes, and
) Smit])'- Htm Jmer. CI. TO. SO. B7 ; I Chdm. Ana. 417.
* SmlUi'ii Sv Jentlj, 80, App. »1. ie. * Idid.
CfalBwra Mjv in 10SO, ]>. 019. Smith oy* in KTB, ^ 111.
* 9mitl>'« Ntw UiKj, 110, 111 ; 1 Chttm. Ana. <19, «9«.
* SBulha S»* J«r»ey, IM,
84
Bisronv OP ME COLOKIES,
[book I.
to appoint officorB. Liberty o( coiwcicncc van allonrcd, nml no
pentotu rcudvred incapable of office in reaped uf their fuilh uud
worship. West Jersey eontinued to be governed in tliix numoer
until the surrender uf the pruprictarj- guvortiinent, jn 1702.*
§ 118. Can«rct died in 1079, und beinj^ the sole pruprietur of
Bast Jersey, byhix will he ordered it to be sold for pftymeiit of his
debts; &nd it wus Bcoordin^Iy Hold to William Penu uud eleven
rtlbcrs, who wcro called the Twelve Propriiitors, They after-
wards took twelve moro Into tlic proprieturysliip; and to tho
twcnty-fuur thus formed, the Duke of York, In March, 1682,
made his third and lost grant of East Jersey.' Very serious
dia«enaiuns soon arose between the two provinces tliomselves, as
well as between thorn and New York, whieh banished moderation
from their councils, and tln-eatened Uie most serious calamilica.
A quo warranto was ordered by the crown, in 168fi, to bo issnod
againnt birth prmince». East Jersey inimediately offered to be
annexed to West Jeraey, and to submit to a governor appointed
by the crown. Soon afterwanis the crown ordered the Jerseys to
bo annexed to New En^^land ; and the proprietora of Eaat Jersey
made a formal surrender of its p«tent, praying cmly for u new
grant, securing their right of soil. Before tliia request could be
granted, the Borolution of 1688 took place, and they passed
under the ullopriaiicc of a new sovereign.*
§ 119. From this jwriod both of the provinces wore in a great
state of confusion and tlistraetion, and remained so until tho
proprietors of both made a formal surrender of all their powers
of guvcnunent, but not of their laudii, to Queen Anne, in April,
1702. The ijuoen immediately reunited both provinces into one;
and by commission appointed a governor over it. He was thereby
authorized to goveru with the assistance of a council, and to call
general assemblies of representatives of the people to be chosen
by the fn^holilei-s, who were required to take the oath of allegi-
ance and supremacy, and tho tests providwi by the acts of Parlia-
ment Tho general assembly, witJ) the consent of the governor
and council, were authorized to make laws uud ordinances for
the welfare of the iwoplo '* not repjignant, but, as near us may be,
agreeable tinto the laws and statutes of this our kingdom of Eng-
' Smith** Nfw Jtnej, ICI.
* Smith'a New Jnuf, 1ST: 1 ClialiiMnr* Aanat]^ CSO. «21 ; H»nlMll'aC(itaa.l80.
> 1 CtwiH. Aan. til, 022 ; Smith'* Stm lawej. SD», SIO, 211, ko.
CH. XI.] . NEW JESBEt. 85
land ; " which laws were, however, to be subject to the approba-
tion or dissent of the crown.' The governor, with the consent
of the council, was to erect courts of justice, to appoint judges
and other officers, to collate to churches and benefices, and to
command the military force. Liberty of conscience was allowed
to all persons but Papists.
§ 120. From this time to the American Revolution the Prov-
ince was governed without any charter under royal commlssiOnB,
Bnl»tantially in the manner pointed out in the first The people
always strenuously contended for the rights and privileges guar-
anteed to them by the former concessions ; and many struggles
occurred from time to time between their representatives and the
royal governors on this subject.'
> Smith's Niw Jtiaej, 220 to 230, 231 to 2S1.
* Smith'iNewJerMf, ch. 14,Bi)(lparticulaTljp. 265, Ju;., pp.2e9, fcc.,276, 293, S04:
Bee Arnold r. , 1 Holited's Rep. 1, u to the right* of the proprietariea in the mU
kR«r tamnder of the gorenmieiit to the cniWD.
M
HISTOfiT OP TBB COLONIES.
[BOOCI,
CHAPTER XIL
PENNsrLVANU.
$ 121. PsHNsrLT^u wu oriinoally settled b; different de-
tachmentH of planters, under Toriuui) uutliorilii's, Dutch, Svedes,
and otlieni, wliich at different tiinon occupied portiuna of land on
South or Delaware River.' The iweeuduuoy van linally obtained
over thf»e settlement* by the governor* of New York, acting
under the charter of l'Ht4, to the Duke of York. Chaluicr«,
however, doo« not scruple to aay, that "it ia a sin^lar circuin.
ataiic« in the hiatory of this [then] inconalderable colony, that
it seems to have been at all times governed by iLturpera, becauBO
tlieir titles were defective."* It continued in s feeble state until
tlie celebrated William Penn, in March, 1681, (Stained & patent
from Charlea the Second, by which he became the projirietaiy of
an ample territory nhtch, in honor of his father, was called
Pennsylvania. The hmmdariea doacribed in the charter were on
the east, by Delaware Kiver, from twelve milea distance north-
wards of New Castle town to tlie 4Sd degree of north latitude, if
the said river doth extend so far northward ; but if not^ then by
said river so far as it doth extend; and from the head of the river
tlie eastern bounds arc to be determined by a mortdian line, to bo
drawn from the head of said river unto the said 43d desrco of
north latitude. The said lands to extend westward five deKrccs
in lougitude, to be computed from the said eastern bounds, and
the said lands to be bounded on the north by the beginning of the
43d degree uf north latitude ; and on the south by a oirole drawn
at twelve miles' distance from New Castle, northward and we«t<
ward, to the l>eginning uf the 40th degre« uf northern latitude;
and then by a straight line westward to the limits of the longi-
tude above mentioned.'
§ 132. The charter constituted Penn the true and absolute pro-
t 1 Chalin. Auub. SSO to e»4 : Bi&lU>'« Kew Yotk. [91] M ; I Pnad, Ftan. UO,
111, ttl, lit, tl(, lis, UB. ISS ; S Dong. Swmn. S»7, Ac
* 1 Clwliii. AduK «•. «»■
■ 1 Prowl, Pmb. 172.
CH. at.]
PEHN8TLTAKIA.
87
[.pHctarjr of the territory thus dc^crilwd (saving to the crowu the
l^orereignt)' (A the country, mid thv ftllcgi&nce of the proprietary
]and the inhabitants), to be holdon of the (.-rovn, aa of the caetlo
of Windsor, in Bc-rks, in free and common nocage, and not in
capUe, or by knight sorvico; and erected it into a Pronnce and
seigniory by thu nnme of PonoAylvania. It uuthoriitcd the propri-
etary and his hcira aiid eucce88ora to make all lawa for raiMng
money and oUicr purpoees, vith the aMcnt of the freemen of the
country, or th«ir dejiutira assembled for the purpoiMs' But ''the
aamc laws were to be consonant to reason, aiid not repugnant or
contrary, but as near as conveniently may be, agreeable to law
['And statutes and rights of this oiir kingdom of England."' The
[laws for the descent and enjoyment of lands, and 8ucc4>«iion to
igoodft, and of felonies, to be according to the course in England
until altered by the assembly. All laws were to be sent to Eng-
land within five years after tlie making of them, and if disap-
'proved of by the crowu within six months, to become null and
Toid.* It also authorizc<d the proprietary to appoint judges and
I other officers; to pardon and reprieve criminals; to establish
'courts of justieei, with a right of appeal to the crown from all
judgments; to create cities and other corporations; to erect ports
and manors, and courts banm in such manors. Litiei-ty was »!•
lowed to subjects to transport themselves and their goods to the
Province; and to import its products into England; and to ex*
; |>ort them frnra thenc<? within on« year, the inhabitants observ-
ing the acts of navigation, and all other laws in this behalf
made. It was further stipulated that the crown should levy no
tax, custom, or im[>oeition upon the inhabitants or tlieir goods,
imlcss by the conSL'nt of ttie proprietary or assembly, " or by act
of Parliament in England." .Sueh arc the most imiiortant clauses
of tltis chart«r, which has been do«med one of the bo«l drau-n of
the colonial charters, and which underwent tJie revision, not
merely of the law-officers of the crown, but of the then Lord
Chief .luiitice (North) of t^ngland.* It has been remarked, as a
singular omission in this charter, that there is no provision that
the inhabitants and their children shall be deemed British sub-
• 1 Pltrnd. Pfim. ITS .- lawi of FeBoqrL, ad. of Fnnklln, Vit, App.
• 1 Prou<I, P«nB. 175, 170^ 177.
• \ Proud. Pens. 177. 17 .
• 1 CUlni. Aaiula, «K, «$7.
88
01ST0RI OF TOE COLO.VIES.
[book I.
jeds, and entitled to uli the liberties aiid iiomunitira thereof, auch
aclauso l}eiiig fouud in every other ciiitrtcr.' Chalmvrs' has ob-
Mrved that the clau8« wm wholly uniieceMary, as the nlleirlatico
to tiie ci-ov-n was reatervcd ; and the common law llieiiee inferred
that all the inhabitants verc subjects, and of cwirso were ea<
titled to nit the privileges of Knglishnicn.
§ 123. Penn immediately invited emigration to his Provinoe
by hulding uut ctmceHRions of a rery liboral nature to all set-
tlcni;' and uuder his benign and enlightened policy a foundation
vas curly laid for the eBtabtishmentof a government and lavra
which have been jiwtly celobrutcd for their moderation, wisdom,
and protecticMi of the rights and liberties of the people* In the
introduction to his firat frame of gorontmcnt, he lays down tiiis
propositiun, which was far beyond the genorul spirit of that age,
thnt "any government is free to the people under it, whatever be
the franie^ where tlie laws rule, nnd the people arc a party to those
laws; and more than this is tyranny, oligarchy, or confusion."*
In that frame of government, after providing for the oi^nization
of it under the govennnout of a governor, cnimcil, and general
assembly, chosen by the pooplo, it was declared that all persons
acknowledging one Almiglity God, and living peaceably, shall
tie in no ways molested for their religious pcrsiiusiun or pruetioo
in matters of faith or worship, or compelled to frt-qucul ur main-
tain any religious worship, place, or ministry.* Provisions were
also made securing the rinht of trial by jury, and tlie right to
dispoAO of property by will, attested by two witnesses; making
lands in certain caacii liable to the payment of debts ; giving to
seven years' quiet possession the efHcacy of an untpiestionuble
title; requiring tlie registry of grants and conreyaiiccs, and de-
elaring that no taxea should be levied but by a law for that pur-
pose made.' Among otlKT things truly honorable to the memory
of this great man, is the tender regard and solicitude which on
all occasions ho manifested for the rights of tJio Indians, and the
duties of the settlers towards tlicm. They are exhibited in his
> IGmham'slIiit. afCokm. 41, note: t Chalnr. Anult, <M, tSS.
* 1 Cbtlnt. AanoK SSP, <»S,
* 1 Pnniil, IVnn. 103 ; 9 Vnai. Piam. .Kfp. 1 ; S Doug. Snmni. SOO, HI.
. • 1 Ctela. AqimIi, S>S, »2 : M*nh. Colo» ch. 0, [>(>. ISS, I8S.
* 1 rrowl. Ptnn. 1»7, 196 ; 3 I'taoO, P«an. Apfi. T.
* 1 PriMia. PtBii. SOO; 9 Proml, Pmn. Afip. IS.
f 3 Praad, PtsD. Apf>. 15. SO t I Clialni. AnuU, 0(1, «».
CB. xn.]
PESNSTLTAXrA.
89
' Orif^iual plan of conccsifiioni^ an well att in various other public
documents, and woro cxcmplific-cl in hw eubticqucnt i-ondtict. > In
LAugiist, 1082, iu order to nvctire lii» title against udvcrei; cluimis
rhe procured a |>nt«nt from tlio Bukc of Yurk, rclcasiuf; all Uis
title derived under any of liia |>ntents from Iho crown.'
§ 124. It was soon fomid tJiat the orijriiial frsnic of goTCm-
ment, drawn up before any settlements were made, was ill iidnptod
to the state of things in an infant colony. Accordingly it was
laid aaide, and a nnw frame of government was, with the consent
of tlio gnneral assembly, estahlisbetl in I(l8i1.* In l()!j2, Peon
was deprived of the ^vernment of IVnnsylvania by Wiltiani and
Mar%' ; but it was again restored to him in the succeeding year.*
A third frame of government was established in ICfKt.^ Tbia
I again was surrendered, and a new final charter of gioremment
waa, in October, 1701, with the consent of the general assembly,
established, under which tJic Province continued to be governed
'down to the period of the American Revolution. It provided for
full liberty of conscience and worship; and for the right of all
persons professing to believe in Jesus Christ, to serve the govcrn-
'nent in any capacity." An annual assembly was to l>o fbosen
of delegates from each county, and to have the usual legislative
authority of other colonial assemblies, and also power to nomi-
nate certain [(crsons ftir oftic« t*) the governor. The laws were
to be subject to the approbation of the governor, who had a coun-
cil of slate to assist him in the government.' Provision waa
made in the same charter, that if the representatives of the Prov-
ince and territories (meaning by territories the tlirec counties of
Delaware) should nut agree to join tt^tlier in legislation, they
should be represented in distinct aMemblies.*
§ 125. In the legislation of Pennsylvania, early )>rovision was
made (in 1683) for the descent and distribution of intestate
estatco, by which they were to bo divided among all the children,
< 1 ClnlK A]iB>K «H ; 1 Proud, Pmn. IM, IBS, SIS, 4S9 ; S Prond. Apfi. 4.
■ t pN«d, Penn. MO.
■ I PicBd, pHtB. 3M; 9 Proud, pMiit. App. 21] 3 Doug. Sunun. 903.
* 1 PimkJ, Pni«. 8T7, 403.
■ I ProiiO, PniA. 415 ; 2 PimuJ. P*nn. ApfL 30 ; HamIuII, Colon, eb. A, p. 1S3.
* 1 Proml, Peoa. (43 to IM ; 3 Dou^ Suinik. S03.
1 1 Pnnid. reiin. 4S0.
* 1 Pt«ad. PcniL at, U& ; 1 HdMi^ Xaaal*. 483.
90 HIBTOBT OF THE COLOMIEB. [BOOK L
the eldest boh having a doable share; and this provision was
never afterwards departed from.' Notwithstanding the liberty of
conscience rect^nized in the charters, the legislature seemB to
have felt itself at liberty to narrow down its protection to persona
who believed in the Trinity and in the divine inspiration of the
Scriptures,'
■ Ukws of ?tnu., ed. of Fnnldn, 1712, App. E ; Id. p. 60 ; 1 Cbalm. AnntK B19.
■ Uwa of Penn., ed. of F^nuklin, 1718, p. 1 [170fi].
cQ. xin.]
DELLVAILL.
di
CHAPTER Xm.
DELAWARB.
§ 126. After Pcnn had bccomo proprlctnrr of Pennsylvania,
he purchased of the Duke of York, in 1t>8*2, all his riglit and in-
terest in tlie territorj', afterwards called the Three Lower Coiin-
tiea of Delaware, extending from the south bouDdarj* of the
Prorinee^ and situated on the western side of the rirer and bay
of Delaware to Cape Hcniojwu, beyond or south of Lcwifiton ; and
the three counties took the names of New Castle, Kent, and Sus-
ses.' At this time they were inhabited principally by Dutch
and Swedes, and seem to have constituted an appendage to the
government of Xcw York.' The first settlement by the Swedes
seems to have been earlier than 1638;* and no permanent
settlements were attempted by tlie Dut^^li until a later period
(1651).*
§ 127. In the same year, with (he eoiuient of the people, nn
act of imion with tlic Province of PeniiBylvania was passed, and
an -Act of settlement of tlie frame of (^rvmment in a funeral as-
sembly, composed of deputies from the counties of Delaware and
Pennnylvanla.* By this act the three counties were, under the
name of the territories, annexed to the Province, and were to be
reprnflented in the general assembly, governed by the aarae laws,
and to enjoy the same privileges as the inhabitants of Pennsyl-
vania.' Difliculties soon afterwards arose between the deputies of
the Province and those of the territories; and after various subor-
dinate arrangements, a final separation took place between them,
> 1 Pnrad, Pran. Sfll, 203 ; 1 Chftlm. Annak. 0(3 ; S Dduc- Sumin. V>7, &«.
■ 1 (%•)»««■'■ AmuOa, 631, 633, 633. 63t, eiS : 1 Holmra't Aanali, SS5, Ml ;
1 Pitk. lIiKL M, M. » : S DoUK. Samta. 221. Sm I CIuUm. Auiub, 5TI, ST3. Wf,
<S1.
* 1 dMtta. Adu1«, 831.
* M. «SI, SSS, 034.
* ) Ptowl. Pnin. 9oe ; 1 Holmn'i Annili. tM : 1 CThalm. AntuJi^ 645. <t9.
* 1 Cl>diM. Anaili, 644 ; 1 DalL Vma. Uwi, App. 34. 36 ; 3 Colilnu'i Firv !?•■
, App.
92 HISTO&T OF THE COLONIES. [BOOK I.
with the consent of the proprietary, in 1703. From that period
down to the American Revolution, the territories were governed
by a separate legislature of their own, pursuant to the liberty
reserved to them by a clause in the original charter or frame of
government. '
' 1 Praad, Penii. SfiS, iSi ; 1 HoIidm'i AddrIb, idi, note ; 2 Doug. Summ. 297,
ca. JOT.]
NOBTB AND 80010 CABOUKA.
98
CHAPTKR Xiy.
NOBTH AND aOVTH CAROLIKA.
§ 128. We next comii to the coiuideratiMi of the histmy of tttc
political organizaticm uf the Curolinaa. That level region, which
8tretch«8 from the 86th de^-ec of nurtli latitude to ("ape Florida,
afforded an ample tlieutre fur the early ntni^lea of the three
great European powers, Spain, France, and England, to maintain
or acquire an exclusive 8o%'ereignty. Various settlement)! wore
made under tltc au8pic«8 of each of the rival powers, und a com*
moil fatv ecemed fur a while to attend them all.' In March, 1662
{April, li>63), Charleii the Second made a grant to Lord Clar-
endon and others of the territory lying on the Atlantic Ocean,
and extendinii from the north cud of the i^lnnd called Hope
Island, in the South Virginian Seas, and within 36 defies of
north latitude, and to tho vest as far as the Houth Heas, and so
respectively as far aa the river Mnthios upon the coast of Florida,
and within 31 dej^rees of north latitude, and so west in a direct
lino to the .South >Seo«, and erected it into a province, by the
name of Carolina, to be holdeu as of the manor of Enot Green-
wich in Kent, in free and common aocagp, and not in capita, or
by knight service, subject immediately to the crown, as a de-
pendency, forever.*
§ t2ft. The grantees were created abaotute lorda proprietarlca,
saving the faith, all<^anoe, and atipremo dominion of the crown,
and invested with as ample rights and jurisdictiona as the Bishop
of Durham )M>!me»s(.'d in his palatine diocese. T1h> charter Kecms
to hare btx-u copied from that uf UarjUud, and resembles it in
nany of it« provisions. It authorized the proprietaries to enact
laws with the assent of the freemen of the colony, or their dele-
gates, lu ca-ct courts of judicature, to appoint civil ofTiccnt, to
grant titles of honor, to erect forta, to nuikc war, and in cases of
necessity to exercise martial law, to build harbors, to make
> 1 Clikliiitn'* Aniub, AIS, Ml, 616.
* I Chalm. Anoal^ Sl« ; 1 HoIiim*'* Aniuib, )«, 323 ; Umh. Coloa. eh. S, p. U>;
1 VTiUIuiiHiB'i Korth CuoL S7, 3S0 ; CuoUus Cbuun^ Iimtl^a, 4M>
m
u
BttTOET OP THE COLOylVS.
[book 1.
porta, to erect manors, and to enjoy customa and subflidiea im-
poaed with the consent of the (roomcn.' And it further author-
tzed the proprictaricM to i^aiit indul^nccH und dispi-iututioiui in
rcligiotu afFairs, ko that persons migbt not be motcsUid fordiffer-
enccH in speculative opinion with respect to religion, arowedljr
for tlic purpose of tolerating non-conformity to the Church of
Eu^Iiuid.^ It further required that all laws should "be conso-
nant to reason, and as near as may be conveniently, ^reesble to
the laws and customs of this our kingdom of England. " * And
it declared that the inhahitants and their children, born in the
Province, slionld be deniKcns of KngUnd, and entitled to all the
privileges and immunities of British-bom aubjects.
§ 180. The proprietaries immediately took measures for the
Ktllcment of the Province, and at the deaire of the Nnw Knglnnd
settlers within it (whose disposition to emigration is with Chal-
mers a constant theme of reproach) published proposals, forming
a basin of government* It wna deelared that there should l>e a
governor chosen by the proprietaries from thirteen peraona named
by tho colonists, and a gpueral aRsembly, oomposed of the gov-
ernor, council, and reprfsentativea of the people, who should haTO
authority to make laws not contrary to those of England, which
should remain in force until disapproved of by the proprietaries.'
Perfect frt'cdom of rcUsiuo was also promised, and a hundred
acres of land offered at a half-penny an acre, to every settlor
within five }'ear8.
§ 131. In 1665, the proprietaries obtained from Charlce the
Second a second charter, with an enlargement of boundaries.
It recited the grant of the former charter, and declared tlte lim-
its to extend north and eastward as far as the north end of Curri-
tuck River or Inlet, upon a straight westerly line to Wyonoak
Creek, which lies within or abont Sfi degrees 80 minutes of north
latitude, and so west in a direct lino as far as tho ^uth Seas,
and south and westward as far as the degrees of 21) inchisive of
northern latitude, and so west in a direct line aa far as the Soath
> 1 ilolinn'i AnntU, 327, SSS. Tliit chartn, Md ttw Mcnttd diuUr, and Uu tm-
dMoantel loaiUuitioM iniHl» by th* prafiriatuiM^ La t« I* fouad fa • hmU iinuto
prinMia Loiuka ttltbMit d*l*, uliirh ii is lisrvard Colltiga Lttmij.
* 1 OolnMa'* Anaab. 3SS : 1 Hewau'i SoaXh Cu. 13 to 17.
* Cuulliu Charter, Ito, Loniloa.
* 1 Ch»lBL AnnkI*,SIS.
* 1 Chilm. Aaiuk GIS, SG3 : lUnh. Colon, ch. S^ p. 1S3l
CH. XIT.]
KORTH AND SOUTH CADOUNA.
05
Seaa.' It then proceeded to constitute th« proprietaries ab8olut«
owners and lords of the Province, sanng the faith, allegiance, and
BOTcreign dominion of tlie crown, to hold the same tia of tlie
manor uf Eaat Greenwirh in Kent, in free and common eoco^
and not in capita, or hv knight aerrico, and to possess in the same
all tlie royaltiea, jurisdictions, and privilegoa of the Bishop of
Durham in his diocese. It also gave them power to make laws,
with the assent of the freemen of the Province, or their delegates,
provided such laws were consonant with reason, and as near as
convenieutly may be agreeable to the laws and customs of the
realm of England.' It also provided that the inhabitajits and
their children should he denizens and 1 luges of the kingdom of
Knglaiid, and reputed and held as Uic iicgc people bom within
the kingdom, and might inherit and purchase lands, and sell and
l>e()URath the same, and should poMess all the privileges and im-
munities of natural-lram subjects within the realm. Ifaiiy other
pro^Hsions were added, in substance like those in the former
charter.* Several detaclied settlements were made in Carolina,
which were at first placed under distinct temporary governments ;
one was in Albemarle, another to the south of Cape Fear.* Thus
various independent and separate colonies were established, each
of which had its own assembly, its own customs, and its own
laws ; a policy which the proprietaries had aftervi'ards occasion to
regret, from its tendency to enfeeble and distract the Provioce.'
§ 182. In tJie year 16fi9, the proprietaries, diBsatisficd with
tiie STStcms already established within the Province, siguvd a fun-
damental conatitution for the govenunent thereof, the object oi
which is di-elarcd to be, "tliut we may e«tabl)sh a govi^rnment
agTveablc to the monarchy, of which Carolina is a )>art, that we
may avoid making too numerous a democracy."^ This cmistitu-
linn was drawn up by the celebrat^-d Jolin Locke, and his memory
has often been reproached with the illiberal character of some
1 I CUot. AaiuU, Sll : 1 VIUIuH*! H. Cw. 130. Ul ; 1 Holnw'* Aniuli, 840 ;
Onllaa Oiaitera, tto, Lonikn.
> 1 WiUknw'* K. Ou. S80, 237.
■ IHofaiiM'a AnMli,3tO;lClMliii. Aniwla,S31, 533 ; I WiUiaau't S. C'-ic. 230 to
3M ; XnAaW* Uwi of N. Car. ClMrttc. ppu I to T.
* 1 ClAlm. AdmI*, S19, CM, CS(, ftU ; 1 WUIknu'i N. Or. 88, tt, M, «. ». H,
103. Ul.
* I CbUn. AddoK ^31.
* I CIuIbi. AnnoU, iM, E3T ; 1 Hobui'i laiuk. UOv SSI, and aoU ; CaraUna
Chntan, Ma, lonxlMt, p. 33.
96
HisTonr OP THE ooi:/»nEs.
[book I.
of tbe articles, the opprMttivc a«rvihtdc u( o<tlicrs, and Ihc general
disregard of somo of tho«c maxiau of rcligloun and political lib*
erty for wkioh hi; hiut in his li-cati8«s of govvrumeut and other
writEngM contended with so much ability and kuocciw. Probably
there were many ciFCiunstanccH attending tJiiii trantiaction which
are now iniknowu, and which niig:ht well have moderated the
severity of the reproach, and furoiHhed, if not a justification, at
least some apology for this extraordinary instance of imwiao and
xiaionary legislation.
§ 133. It provided that the oldeeit proprietary should be the pal-
atine, and the next oldest shonld succeed him. Bach of the pn>-
priet4trie8 was to hold a high office, Tlie rules of precedency were
most exactly established. Two orders of hereditary nobility were
instituted, with suitable estates, which were to descend witli the
dignity. I'he provincial legislature, diguthed with the name of
Parliament, was to be biennial, and to conaistof the proprietaries
or tJieir deputies, of the nobility, and of representatives of the
freeholders chosen in districts. They were all to meet ia one
apartment (like tbe ancient Scottish Parliament), and enjoy an
eijual vote. No Imsinesa, however, was to be proposed, until it
had been debated in tbe grand council (which was to consist of
the jiroin-ietaries and forty-two counsellors), whose duty it was to
prepare bills. No act was of fonre longer than until the next bicn-
uial meeting of the Parliament, unless ratified by the palatine and
a qnonim of tJie proprietaries. All the laws were to Wcome void
at the end of s century, without any formal repwil. The Church
of England (which was declared to be the only true and orthodox
reli^on) was atone to !« allowed a pobtic maintcuance by Parlia-
ment But every congregation might tax its own members for the
support of its own minister. Every man of scventeou years of
age u-as to declare himself of some church or religious profea-
Biou, and to be recorded as such; otherwise he was not to have
any benefit of the laws. And no man was to be permitted to be
a freeman of Carulina, or have any estate or habitation, who did
not acknowledge a ()o<I, and that (5od is to be publicly wor-
8hij>i)ed. In other respects there was a guaranty of religious
freedom.' lliere was to bo a public registry of all deeds and
1 Hentt'i Soatli C*r. it to 47, 821. 4o. g Carolint ClurUn. 4(0. londoD, p. 13,
; Ae. i 1 Cittlsi. Aan^h, &M ; I HaIom'i Amak, SU. 891 ; 1 'WiilUtni'i X. Cm. 101
Lto 111 i Hanh. Cobn. ob. S, |>. ISSj 1 Bftwuy'i Soath Cw. St, ».
CH. 11 v.]
NORTH ASP SODTH CAROLISA.
97
cotiToyanow of landn, and of marriages and liirths. Every free-
man wan to bavo "absolute pow<!r and authority over his negro
slavM, of what opinion or religion soever." No civil or crimi-
nal cauM was to bo tried but br a jury of the peore of thn party ;
but the wrdict of a majority waa binding. With a view to pre-
vent unoMt'saary litigation, it was (with a aimplicity, which at
this time may escite a smile) providc-d that "it shall be a base
and vile thing to plead for money or reward:" and that**»inco
multiplicity of commonta, n» well aa of iuw]^ have frrcal incon-
veniences, and serve only to olMCure and perplex, all manner of
coromentfl and expositions on any p«rt of these fimdamental oon-
Btitiilioni*, or on any part of the common or statute law of Caro-
lina, ar« ahwiliitely pruhibited." '
5 134. Such^waa the sulwtanoe of this celebrated constit^ition.
It IB eaay to perceive that it wan ill adapted to the feclinga, the
wanta, and the opinions of the cotoniHta. The introduction of it,
therefore, waa reaiated by the pcoplei, a» much as it coiild be; and
indeed, in aomo reH)K>ctA it waa found impracticable.' Public
dissatisfaction daily increaaed, and after a few years' experience
of its ill arrangements, and its mischioroua tendency, the propri-
etariee, npon the application of the people (in 169^X abrogated
the oonatitntion, and restored the ancient form of govonunent.
Thus perished the labora of Mr. Locke; and thus jierishi-d a sys-
tem, under the administration of which, it has Ix-en remarked,
the Carolinians had not known one day of real enjoyment, and
that inlrodiicwi evils and disorders, which ended only with the
diamlution of the proprietary government.^ Perhapa in the
aonala of the world there is not to be found a more wholesome
lesson of the utter folly of alt efforts to establish funns of govern-
ment upon mere theon,', and of the dangers of legislation without
eonsiilting the habits, manners, feelings, and opinions of tht
people upon which they are to operate.
( 1&5. After James the Second came to the throne, the same
general course was adopted of filing a '/ho warranto against the
proprietarica, u had been successful in respect to other colonies.
) Chroliu Ctwrttn, tlo. p. i&, S 70. p. 17, | W i 1 ITmnH'i Soath Oir. t31. *6.
■ 1 lUinMr'* Sonlh Cb. 39, t». SS ; 1 Hiwwlt'i Sooth C^t. IS : 1 Chalmen'i An-
Mb. SST, 52B, i», S30, SSZ, iiO ; Hank. Cglon. cb. 5, p[x 114, 1S7, IM ; 1 Willbau't
V. Out. ISS, US.
VOL. I. — 7
9B
BIdTORr OF TBS COLONIES.
[book
The proprietaries, with a riew to elude the storm, prudently
offered to surrender their charter, and tbcrvby gained time.'
Before anything definitive took plaoe, the Rvvolutiuu of 1688 oc-
curred, which put an vnd to tliv hostile pruecudinga. In April,
16^8, the proprietariei) made uuother ayittem of fuudum«nta) coa-
stitntions, which emhniced luany of thoBC propounded in thu first,
and indeed, waa manifestly u more aineudmvnt u( llicm.
{ 186. These constitutions (for experience docs not seem to
have imparted more wisdum to the giroprietaries on thin subject)
contained the must obj^ctiunublu features of the system of gov-
ernment, and hereditary nobility of the form«r const! lutitms, and
shared a common fat*;. Tlioy were never generally luwvnied to
by the people of the eoluiiy, or by their representatives, as a )>ody
of fundamental laws. Hewatt says,* that none c^ these systuius
ever obtained "the force of fundamental and unalterable laws io
the colony. What rcgulutions the people found applicable, tlicy
adopted at the rc4)uc«t of tlicir governors; but observed tlicsc on
account of their own propriety and necessity, rather than as a
system of laws inipoMd on them by British legislators.'*'
§ 137. There was at this period a space of three hundred miles
between the southern and northern settlements of Carolina;*
and though the whole Province wag owned by the same proprieta-
ries, the legislation of the two great settlements had been hith-
erto conducted by separate and distinct assemblies, sometimes
under the same governor and nomctimes under different gover-
nors. The legislatures continued to remain distinct down to the
period when a final imrrender of the proprietary ohnrter was made
to the crown in 1729,* The respective tflrrituriea wire desig-
nated by the name of North Carolina and South Carolina, and the
laws nf each obtained a like appellation. Cape Fear seems to
have Wen commonly deemed in the commissions of the governor
tile boundary between the two colonies.^
) 1 ChdiMnfi AnniU, 5<9 ; 1 Rolnci'i Asub. 418.
* 1 lUmtt'* Smth Carol. U.
* Dr. Htmnjr tnati thcM ninamin miuHuiUoim u of no inlborit^ whataonw In
the PioriniMv u > Uw ot ral« of lOViinBtml. Bnt in > Hpl point gf view tliB |if«po-
litloo i* open to much donbc t Vmmtf't South Cuol. ISl tn 131.
* I Willinnn'* V. Car. 15S.
* Uanb. Colon, oh. t, pi'. 214. St7 1 1 Hevmtt'* Soath CmL !)2, tl8.
* 1 WIUUou'* X. Car. ISI. IflS: 1 It«nMr'* Sontli Carol. S«. b.. 88. H : 1 Btw-
■tt't 8mUi Car. U^ SIS ; 1 HoUnna'a Anaids S3S, JtS ; Manb. Coloa. eh. P, p. Ut.
CH. XIV.]
NORTH ASD flODTH CAKOUNA.
99
§ l&R. Ry the mirrender of tlie charter, th« whole govenuueut
of the territory was vested in the crown (it had been in fact CX-
ercised by the cn>wii ever since the overthrow of the proprietary
goTemiDcnt in 1720) ; and henceforward it became a royai Prov-
ince, and wiui governed by commiaaiun under a form of govern*
meot subBtantiully like that established in the other royal
provinocfl.' This chauj^ of jrovcrninout u-as very acceptable to
Uw people, and gave u new impulse to their industry and enter-
prise. At a later period (1782), for the convenience of the
inhabitantx, tltv Province wa» divided; and the divisions
■vcTv distinguished by Uio nuiuc-s of North Carolina and South
Carolina.*
§ 139. The form of jtovemment conferred on Carolina when it
became a royal Province was in substance this: It consisted of a
governor and council appointed by the crown, and an assembly
chosen by the jieople, and tbe»c three brunc)ie« constituted tlie
legislature. The governor convent-d, proi-ogued, and dissolved
the legiftlaturc, and had a negative upon the laws, and exercised
the executive authority.' Ho poHnetvied also the powers of tI>o
court of chancery, of the admiralty, of supreme ordinary, and of
appointing magistrates and militia officers. All laws were sub-
I jeet to the royal approtwtion or dissent; but were in the mean
time in full force.
§ 140. On examining the statutes of South Carolina, a clo«*c
adhercnoc to the general policy of the English laws is apparent.
Aa early as the year 1712, a large body of the English statutes
was, by express legislation, adopted as part of its own code; and
all Engliah statutes respecting allegiance, all the test and su-
premacy acts, and all acts declaring the rights and liberties of the
subjects, or securing the same, were also declared to be in full
force in the Province. All and every part of tlio common law,
not altered lir those aofa or inconsistent with the constitutions,
costoms, and laws of the Province, was also adopted as juirt of
it* jurisprudence. An exception was made of ancient abolished
tenures, and of ccelcsiastical matters inconsistent with the then
ebarch est^lishmcnt in the Province. Tl>ere was also a saving
of tlio liberty of conscience, which was allowed to b« enjoyed
1 Mmh. CoUm. ch. 9, p. Sir.
* Umh. C<]t«a. oIl «. p. SS7 1 1 HolmM's AsnaU, 914.
* 1 B«w>U'i SoiUli Cm. cli. 7, p. I, <f m^. i 1 Buimjr's Sontli Ou. tk. «. p. H.
100
aiSTOBT OP THE
[book I.
by the charter from the crown and the lawa of the Provinct*
Thia in>erty of conack-noo did not ainotmt to a right t« deny the
Trinity.' Tins Church of Eu^ltind had been previously estab-
liBh(>d in tho Province (in 1704), mid all mvmbora of th« aiMem-
lily were rcqiiimd to be of that per8ua8ion.^ Portunatwly Quccu
AnnL- onmilleil these obnoxious laws; and tJiough the Church of
Kn^land wax established, disaenters obtained a toleration, and
the luw respecting tlio religious qualification of a«8cmbl}'mea
was shortly afterwards repealed.
§ HI. The l«wft of descents of intestate real estatps, of wills,
and of U80«, existing in Bngland, seem to have acquired a per-
mnne&t foundation in the colony, and remained nndisturbed,
tmtil after the pi>riod of the American RcrolutlcHi. * As in the
other colonies, the registration of convcyauct-s of lands waa early
provided for, in order to suppress fraudulent grant*.
§ 142, In respect tn North Carolina, there was an early decla-
ration of the legislature (1715) cooformably to the cbart«r| that
the common law was and should be in force in tlio colony. All
statute laws for maintaining the royal prerogative and succession
to the crown, and all such laws made for the cstublislinK'nt of
the church, and luws made for the indulgence to Protestant dis-
senters; and all Isws providing for the privileges of the people^
and security of trade; and all laws for the limitation of actions
and for preventing vexatious suits, and for preventing immorality
and fraud, and confirming inheritances and titles of land, were
declared to be in force in the Proriucc.* The policy thus avowed
was not departed from down to the period of the American Revo-
lution ; and the laws oS de«oent8 and the registration of convey-
ances in both the Csrolinas were a silent result of their common
origin and government
> Orimke's Soatk Otntint Um aTlS). pp- S>> ^B, 99. 100^
» W. A«rfI703. p. i.
1 1 HoItBo'g Aaatlt, iSt. «M, 491 ; 1 ItewM'* 8M(th Oud. lOfl to irT.
• i Bwmoj'i Sontlt 0*r. 130. n* dcKMt of mMm m* Mt ■Itend natll IKL
• IncUU'* Nonh Cu. Uin, IT19, pp. 18, IB.
ca. XV.]
CEOBQIA.
loi
CHAPTER XV.
OBOBOU.
§ 143. In the Mine year in whioh Carolina was divided (1782),
a pn^ject was formed for the settleiiK'nt of a colony ti|Kiii the uii-
occupied territorj between the river* Savannah and Altaraaha.'
The object of the projectora wa« to ntreiigthen tlip I'rovince of
Carolina, to pnmdu a iuuint«nanci> for tlie miDtering poor of the
mother country, and to open an asylum for the |>eraecat«d Prot-
Wtuits in Europe ; and in common with all the other eolonies to
•ttempt tlic couvcraion and civilization of tiio natives.^ Upon
applicatiou, (icorge the fecund gnuited a vliart«r to the com-
pany (coiisiatiu); of Lord Pvrcival and twenty othors, ainonff
whom viA the tcli-brutod Oglethorpe), and incorporated them by
the name of the Truatccfl for cstubliahing the Colony oi Georgia
in Amorica.' The charter conferred the usual powers of eorjw-
rntionii in England, and authorized the trusteca to hold any terri-
tories, juriddictiuun, etc, iu America for the better acttling of a
eoluny tliere. Tlic offaim of the corporation were to be managed
by tbc corporation, and by a common coimcil of fifteen pereou*,
in the first place nominated hy the crown, and afterward^ as
vacancies occurred, filled by tlie corporation. Th« number of
comnion-oouucilmen migtit, witli the increase of the corporati<Hi,
Iw increased to twenty-four. The charter further granted to the
corporation seven undivided parts of all the territories lying ia
that part of South Carolina whi<-h \\f» from the northern stream
of a river, there called tlie Savannah, all along the aea-coast to
the southward unto the southemmoat atream of a certain other
great river, called the Altamaha. and westward from the heads
of the said rivcni niapectively in direct Unea to tlio South •Si'ms,
to be held as of the manor of Uampton Court, in Middlesex, in
1 1 UolinM'i AdmIi, ESI ; lla»h. Cottwiot, ch. 9, {l SiT : 2 Hewitt* Soath Otf. IS,
1<) tkakt^t niu. OoIodIm. II).
■ 1 Holnm't Anntla, S5S ; 3 Hrnu's Soalfc Cw. IS, 14, IT.
* CWUi* Of V. A. Vvyriaea, Ito, Lomioa, ITM.
102
BISTORT OF THK COLONIES.
[book I.
free and common socage, an<) not in capiu. It then erect«d »U
the territory into an independent Province by the name of Geor-
gia. It authorized the tmfltees for the term of twenty-one years
to make laws for the Province " not repugnaut to the lawa and
statutes of Kn;;land, subject to the approbation or disallovance
(^ the crown, and after such approbation to bo valid." Tlieaflfaim
of the corponition were ordinarily to be managed by the comiuoa
council. It wiu) further deelurud that all pensuntt born in the
Province should enjoy all iho privilege* and immunities of ual-
|Iiral-bom ttitbjix-ts in (ireat Britain. Tiiberty of conscience was
kllowed to nil inltubitanta in the worabip of Ood, and a free exer-
cise of religion to all persons, except Papists, llie corporation
were also authorized, for the term of twenty-one years, to ereet
courts of judicature for all civil and criminal causes, and to ap-
point a governor, judges, and other niagistrales. The regintra-
tion of all conveyances of the corporation was also provided for.
The governor was to take an oath to observe all the aets of Par-
liament relating to trade and navigation, and to obey all royal
instructions pursuant thereta The governor of ^utb Carolina
was to have the chief command of the militia of the Province;
and goods were to be imported and exported withmit touching at
any port in South Carolina. At the end of the twenty-one years
the crown was to ealablish such form of government in the Prov-
ince, and such method of making laws therefor, aa in ita pleasure
should be deemed meet; and all officers should t>e then appointed
by the crown.
§ 144. Such is the substance of the charter, whicli was ohvl>
uuitly intended for a temporary duration only ; and the first meas-
urea adopted by the tru8te<-B, grunting lands in tail male, to be
held by a sort of military service, and introducing other restric-
tions, were not adapted to aid the original design or foster the
growth of the colony. ■ It continued to lan^itsh until at length
the truRteea, wearied with their own labors and the complaints of
the people, in June, 1751, aurrenderod the charter to the crown.'
lenceforward it was frovemed as a roj-nl Province enjoying the
^tame liberties and immunities as other royal provinces; and in
proc«w of time it l>egan to flourish, and at the period of the
1 Ihnbalt't Colon, cb. *, pp. SfS, St9, SSO ; 1 HoIiom'* Aiib>1«, 4-15 ; S Hvmi**
ath C*r. 41. It, 4S.
* S HoIbim'* Auwli, id.
CB. XT.] OEOROIA. 108
American RerolutioQ it bad attained coosidci-able importance
among the colonies.'
§ 145. In respect to ita ante-reToluttonary jurisprudence, a
few remarks may suflice. The British common and statute lav
lay at the foundation.' The same general system prevailed as
in the Garoliuaa, from irhich it sprung. Intestate estates de-
scended according to the course of the English law. The regis-
tration of conveyances was provided for, at once to secure titles
and to suppress frauds ; and the general interests of religion, the
rights of representation, of personsj liberty, and of public jus-
tice, were protected by ample colonial regulations.
> StokM's Hitt of C«loiu(«, IIS, IIS j 3 Uewttt'i Sonth Cw. 1«S ; S Holnioi'i An.-
ualc, U, 117.
■ StokM'i Hut. of Colon. 110, 18S.
104
HiarOKT OF THE COLONIST
[■O0HL
CHAPTER XVI.
OBNERAL BEVTgW OP THE COLONIES.
§ 146. We have now finished our «urver of the origiD and
political hiator)- of tho coloiiieB, and here we may pauiw for &
short time for th« purpose of some general reflectionn upon the
subject.
§ 147. Plautations or colonies in distant countries are either
such as are acquired bjr ooiupying and peopling dceert and un-
cultivated regions b; cmigrationfl from tho mother country,' or
such OS, being ali-eady cultivated and organized, are acquired by
oonqucst or cession un<ler treaties. There in, however, u differ-
ence between these two npecics of colonies in reiiix>ct to tJie laws
by which they are governed, at least according to the jurispru-
dence of the common law. If un uninhabited country is discov-
ered and planted by British subjects, the EngliRh laws are said
ta be immedinU-ly in forec there; for the law is the birthright of
every subject So that wherever they go they carry their laws
with them; and the ncw-fmmd country is giivemed by them.'
§ 148. This proposition, however, thuugli luid down in such
general terms by \'ery high autliority, requires many Itmitationa^
and is to be understood with ninny rcstnelions. Such colonists
do not carry with them (he whole bc^dy of the English laws, as
they then exist; for many of tlieni must, from the nature erf the
case, be wholly inapplicable to their situation, and inconsistent
with their comfort and prosperity. There is, therefore, tliis ne-
cessary limitation implied, that they carry with tlicm all the
laws applicable to their situation, and not repugnant to Uie local
and political circumstances in whicli they are placed.
§ 149. Even us thus Htated, the proposition is full of vagueneM
and perplexity; for it must still remain a question of intrinsic
difficulty to say what laws arc or are not applicable to their sit-
uation ; and whether they arc bound by a present statu of things,
> 1 BL Caam. 107.
« 3 P. Vm. rs : 1 BL Contm. lOT ; £ Silk. 411 ; Con. Dig. Uj. C; lUs ».
Ta«glua, 4 Barr. 8. tSOO ; Chitty am ?nng. cb. 3, ]>. t». Ac
CH. XVI.]
OtLNKBAL REVtCVr.
105
or are at libertj* to apply the la«>'!* in future by adoption, on tho
Xrowth or iuteresta of the colouy may dictate.* Tlie English
mies o( inheritaitop, and of protection from penwiiiil tDJunes,
the ri;^t8 secured by Magna C'harla, and the rotiKiIial course in
tlie adminint ration of justice, are exaniflcfl aa clear perhajis as
any which can be stated aa preaiunptivcly adopted, or a]>plicabte.
And VL'l in Ujc infancy of a colony Kome of these very rir^it^ and
privikycs and remedica and rules may bo iu fact inapplicable, or
. incuuvenient and impolitic.' It U not perhaps caay to settle
what purtii of the EuK^tdi laws are or arc not in f<(i-e« in any
auch colony, until cither by usage or judicial dctenikiiiation tliey
hare been recognized aa of abaohitc force,
§ 150. lu rcs[icct to cutK)iiered and ceded countric*, which
have already lawg of their own, a difTercnt rule prcvaila. In
such cases the crown baa a rif^t to abrogate the former laws and
institute new ones. But until such new laws are promulgated,
the old laws and customs of the country remain in full forc«, un-
less BO far as they ai-o contrary to our reli^on, or enact anything
that is malum in ae; for in all auch caacs the laws of the con-
quering or acquiring country ahall prevail. This qualiiication of
the rule arises from Che pi-esuniptiou that th.e crown could norer
intend to sanction laws contrary to religion or sound morals.*
But although the king baa thuH the power to change tlie lawa of
ceded and conquered countries, the power is not unlimited. Ilia
legislation is subordinate to the authority of Parliament Ug
cannot make any new chang« contrary to fundamental principles;
be cannot exempt an inhabitant from that |>artictilar dominion,
as for instance from the laws' of trade, or from tlie jwwer of Par-
liament; and he ciinnot giTu bim privilegea exclusive of other
anbjecta. *
§ l-^l. Hr. Justice Blackstonc, in his Commentaries, insists
that the American colonies are principally to be deemed con>
<]U«red, or ceded countries. His language is, "Our Americoa
> t Bl. Cuinm. lOT : i MtrinU, B. liS, ISO.
• I BL CooiiB. 107 ; I Twlier'* BiMk. note H 87S, SS4, Umf-it Burr. B. ZSW i
2 Umvalc, R. 1«3, 1}T, IM ; 3 WiImi'* Uw Led. » lo $1.
• Bknkaid >. G^y, 4 Mod. «>: •. D. t SaUt. 411. tlS; 3 Pcera Vtit 75; I
Dkok. CoMin. 107 ; Campbell % Hall, Cowp. B. SO*. K», CaMn'a CuHt 7 Co. 1, 17 A i
Com. DlK. Kiitpllon, 0. 1, S ; Id. Uy. C. ; i bvrr. B. iiOO ; 2 U«fi<ralc, R. lU,
U7. las.
• OuBpbaU *. Hall. Covp. B. SOI, «» ; CUUj <m Preng. ch. 3, p. 89. ««.
106
UieTOItr or THE COLONIES.
ttoMi.
plttnMiOBM vn principally of this latter aort [that in, ceded or
oonqiwred oonntrii^Hj, lining obtained in the last century either
by right of comjiipat and driving out the natiTes (with what nat-
urnt jimtice I shall not at present inqiiirt'), or by trcatii-tt. And.
therefore, the common law oi England, as suob, hna no allow-
ance or authority there; they being no part of tlio mother coun-
try, butdifltinot, thmipJl dependent dominion*."'
§ 162. There is great rcaa^m to doubt tlic &<.-<:ursoy of this
statement in a k-gal view. Wu )iave nln^udy «c<on that the Eu-
ropean nations by whom America waa colonized treated the sub-
ject in a very diflorent mannt-r.' They claimc-d an absolute
dominion ovvr tlic whole torritonca afterworda occnpivd by them,
not in virtue of any conquest of, or ccasion by, thv ludian na-
tivca, but as a rij^ht acquired by diseovury.* Some of tbcm,
indeed, obtained a sort of confirmatory grant from tJie papal
authority. But »a botwccn Ihomselvca they trcat«d the dominion
and title of territory as resulting from priority of discovery;*
and that European power which had first discovered the country
and s«t up marlcs of |>os«es9ion wag deemed to bare gained the
right, though it hnd not yet formed a regular colony there.*
Wc have aUo aeen that the title of tlte Indiana was not treated
aa a right of (iropricty and dominion, but ua n mere right of oe*
cupaitcy.* A« infidels, heathen, and Bavagea, tljcy were not
allowed to possess the pmrogatirea l>oloRging to absolute, sover-
eign, and independent nationa.^ The territory over which they
wandered, and which they used for their temporary and fugitive
purpoeet, voa, in respect to Christians, deemed as if it were in*
habited only by brute onimula. There is not a single grant from
the British crown, from the earliest of Elizabeth down to tlie
1 I Rl. Crtniii. 107 ; Chltty an Pitroff, rli. S, p. 2»,
■ Sm ami. pf^ 1 U> » i 1 CUliB. AtOMix, ait : t Wilton'i Worka, 23*.
• vittri. B. I. ch. IS. H >os, M«, »7. aoe, M».
• JobtuM V. Mclotoih. S WiMt. S. HS, STd, WO.
• IVna r. tjud B^IUmm, 1 Vc«. ui, 451.
• 9 K«nt->CM>m. SOS to SI3: 1 CUa. AsMb, 97*, «77 ; t JeBtnoa't Cam^
4T9 : WoiTMtor r. a«argb, S PwUn'« R. MS.
' To do but juMic* to thoM Umt*. ft ti frapcr to •(•(• that thii fnttntm did not
obula MiiTenaU tpfmlatSon. Ou Ibe conlmy, tt >m oppewd by ••■>• of th* laoM
kUghUnod moleriuiica uid pliilocofihatm of titom dayi, « n^JMt ttu\ ahKanl ; ami e^
[ femOj bf two flpMtub writen of emuuuit worth. Soto ukd Victerih. Sre Sir June*
, MelatMb'* Flrgurt UmUm m tha Pnipta of BOiImI PhikMopb;. FhiUiMphia odiL
t JSSI, |>^ ««. SO.
ca. in.]
OEXERAL BKTIEW.
lOT
I
latest of George the Second, that affects to look to any title ex-
ce[>t that founded on diacovery. Conquent or cession in not once
alluded to. And it is imfiossible that it should have been; for
at the time whc-n all the leading grant* were reapcctireljr made,
there had not been a.ay couqurat or evasion from the natives of
the territory comprehended in those grants. Even in respect to
the territory of New York and New Jersey, which alone afford
any pretence for a claim by conquest, they wore conquered from
the Dutcli, and not from the natives, and were coded to Kngland
by tlie treaty of Bredu in 1667. But England claimrd this very
territory, not by right of this conquest, but by Ihc prior right
of discovery.* The original grant was made to the 0uke (rf York
in 1G(>4, fijundod upon this right, and tlio subsetgucnt confirma-
tioQ of his (ilJc did nut depart from the original fouuduttun.
§ 158. Tito Indiana could id no just sense be deemed a con-
quered people, who had been stripped of their territorial pOMCB-
sions by superior foree, Tliey were cunsidenMl us a people not
having any regular laws, or any organised govcmmont, but na
more wandering tribes.' They were never reduced into actual
obediencCf as dependent commnniiic*; and no scheme of general
legislation orer them was ever attempted. For many purposM
they were treated as independent communities, at liberty to gor-
cm themselves, so alwa>*s that they did not interfere with the
panuncmnt rights of (he European di8coverers.*(a)
§ 154. For the most part at the time of the first grants of the
colonial charters, there was not any posaeaaion or occupation of
the territory by any Dritish emigrants. The main object of
these charters, as stated in the preliminary recitals, was to tn-
Tlt« emigrations, (o (Hwple the country, to found coltmies, and to
Christianize the natives. Even in caso of a conquered coimtry,
whore there are no laws at all exisltug, or none which are
adapted to a civili7.ed community, or where the laws arc silent,
or are rejected and none substituted, the territory must bo gov-
erned according to the rules of natural equity and right And
< 4 WbMUin, Srt. 070, CM. 8m iln 1 TdoIe. Black. Appi. 833 : 1 Chilin. Aa-
iHbi.«ra.
» V«ft«l, B. 1, rh. IS, a S08. S09 ; S Kent'. Cmam. 112, SIS.
• t WWat. B. 6»0, SOI, SM : I GtabaBt'o HUL of Awmkm, 44 ; 2 K«dI'* CMain.
311 • W«tmrtcr *. State oTODor^a. t PkUn** Su|k Cl. Bapi. SIS.
(a) Uaclcsy «i Coxe. IS Hov. 104 : Vlmt. lot Law, pt. 1, ob. S, { If.
108
RISTORT OP TB£ COLONIES.
£booe I.
Englishmen removing thither must be deemed to carrjr vith them
those rights and pririlegea which belong to them in their natire
country. '
§ 15o. The rory ground, therefore, aHSumed by BoglsQd, u
tho foundution of )t« title to America, and the iiivitatiuuii to its
own subjects to people it, carry nlungwith them » ncccwary im*
plicatiou tliat the plantationa, BithM^uently fonnod, were to b«
de«med a part of tlie ancient domininnii; and the subjects inhub-
iting them to belong to a comuiou country, and to i-etain their
former rights and privileges. The government, in it« public
policy and arrangements, as well aa in its chartvrti, proclaimed
that the colonies were establiahed with a view tu extend and en-
large the boundaries of the empire. The culoniea, when »> formed,
became a part of tlie atato equally with ita ancient poit»c»iiuiui.*
It is not, therefore, without strong reaaoo, that it has been aaid
that "the coloniots, continuing lu much subjects in the now es-
taliiiehQiciit, where they had freely placed themselves ^with tho
consent uf tho crown], ta tlicy had bvcn in the old, carried with
tlicm their birthright, — tlie laws of their oountr}', bocauso the
customs of a free pei^ple are a part of their lilwrty;" and Ibat
^the jurisprudence of England became that of tbo cotoiiiva, ao
far as it wits applicable tu the situatiun at which they had newly
arrived, because they were liugliahmen residiug within a distant
territory of the empire."' And it may be added, that as there
were no other laws to govern them, the territory was necessarily
treated tus a deserted and unoccupied country, annexed by dis-
covery to the old empire, and composing a part of it.* Morcu\-er,
even if it were possible to consider the case as a case of con<|uest
from the Indians, it would not follow, if tJio natives did not re-
main there, but deserted it and left it a vacant territory, that the
rule as to conquests would continue to apply to it. On the con-
■ S Snlk. in, 4I>. S« dM Hin *. Ounptxll. Ooiqk. R Ml. Ill, 213 1 1 CWIm.
Aon. It. 13, STS, 67iVS3». SOO ; 1 Clulnt. OpioMU, lUI j « CUbb. Optniooi, tOti
Oiitty an Ptrroa. rl., S ; S Wiiim'* Iaw L»cI. 48, 49.
* Vallt-1, B. 1, tb. ]«,( aW; 1 Cballa. Aaiud*, S7«, Sr7, S7B, «7*i 8 WhaU. R.
9SS; Gratini. B. 3, eti. 9, f 10.
■ I Cluliii, .^R». 677 i U. II, U, MS 1 S VilMo'a U* Uct IS, t» : S Wikon's
L.tw lATt. £31. a»5.
• Raberdou >. Rmu, 1 Alk. R. SIX. Sll | V4a^Ma. R SOO. «W ; Show. Pttri. Cm.
31 1 8 WhMl. n. t»i ; I Tuck. BlMk. Conue. Atip S»S, a&l ; Dumnwr'i Ovbac^ I,
Amnicu Tneta, IS.
CH. IVI.]
gekhBjIL asviEW.
J09
tran-, aa soon as tlie crown should choone to found an English
colony in such vacant territorr, the general principle of »ettle-
incnta in destrt countricti would govern it It would cease to be
a cunqurat, and lx.-comu a colony, and aa Buch bo affected )>}- the
Britiah lava. This doetriuo is laid don-n with great clearneaa
and foR-o by Lord HunaGeld, in bis celebrated judgment in Hall
V. Campbell.' In a still more recent case it was kid down by
Lord EUcnborougli that the law of England might properly be
cognizH by Biibjccts of England in a place occupied tcroporfir
^Tily by British troopa, who would impliedly carrj that law with
them.'
§ 156. The doctrine of >Ii-. Justice Blackstone, therefore, may
i-irell admit of Berim» doubt n]>on geiiernl principles. But it is
aanifestly ei'roneous, »o far as it is applied to the colonies
snd plantations composing our Union. In the chartera under
ywhich all these colonies were settU'd, with a single exception,*
tierc is, as hoH Ir-cii already seen, an express declaration that
all subjects and their children ioluibiting therein shall be docmcd
. Outural-liom subjects, and shall enjoy all the privilein^s and im-
'niunitics thereof. TItere is also in all of tJicm au ciipress re-
striction that no laws shall be made repugnant to those of Eng-
land, or that, as near as may be couTcnieutly, they shall be
consonant with and confurniable thereto; and cither expressly or
by necessary implication it is provided that the laws of England
so far as applicable shall i>e in force ihere. Now this dwlara-
tion, even if the crown previously posseaaed a right to eatabUsh
what laws it pleased over the territory, aa a conquest from tho
nati^'es, being a fundamental rule of the original acttU-mcDt of
the colonies, and before the emigrations thither, was convluaive,
and could not afterwards he abrogated by the crown. It was an
irrevocable annexation of tho colonies to the mother country, M
dependencies governed by tho same laws and entitled to the same
rights.*
5 167. And BO has been tho uniform doctrine in America ever
since the Bettlement of tlie colonies. Tha universal principle
1 Oaw^R.90(, 911, IIS.
• B«x *. Bramploii, 10 Ewt, R, 8SS, »SS, t$*.
■ That af PtAiuylTUiU, 1 Gnbuae'* HM. 41, note ; 1 Ciaim. Anoali, 11, IS,
«3ab MS. tSS ; 3 Wnwn'i Uw LmL 48, 40.
* 6tak*-» ColMt. SO i Holl c. Ctepbd, Omh^ B. Ml, 112 ; 1 Txk. Block. Conun.
Aff US, 8M ; CHUj. Pieng. 8S, SI.
uo
niSTORT OP THB C0L0ME8.
[book I.
(and the practice ban conformed to it) hu been, that the com-
mon law iit our birihri^t and inheritance, and that o»r ances-
tors brought hither with them upon tlieir emigration all of it
which was applicable to their situation. The whole structure of
our present jurisprudence stands upon the original foundational
of the common law.' (a)
> Not»ilhitu<]tiig tbfl cleanirai of tlib doctrine, troth from Ike lutguagB of the
eliuMnind tlio whole count of judicial dvditoii*, Ur. J<Jf«non hu treitad it vitliui
' extraordiaaTjr ilrgrra of dnition it not of contempt. " I dtridc," uys lie, ' ' witli jrou the |
ardiiiarjr dortrine, that wo bronjht with i» from Kngland ibc «iiiiinon-!aw rights.
This narrau! nrfun Wu ■ /iiunft in thn flnt monirnt nf mllyinji to our ri)[hu i^Dat J
Gmt Britain. But it wu that of mm wliu fxll tlii-if rl^tiU, iH-foru Ihuy had thoo^t
of their explanation. The tnitli ■», thul up brought with an llie rigblit of uwd, of «x-
pttriattd mm. On our arrind hen the qumtioii would at once arine, hy what law will
W govern onrMln* r The naolutlan tKmt to bare been, hy that ijiUna wttb whkh
we un bmiliui to be alttml hj onnwIvM oocaMonally, and ad^ilcd to odi new litua*
tion," i Jtflenon'ii Corrapk 178.
HowdUTcrmtlydid theCongKMof 1T74 thwlc Tti()r<iiMiwMMU^nMli«d."Tbat
lit* iMpwIlTe colonlee are entitled ta tit eamneit taio ^ Sngtaa^ utd men etpedeUy
to th« gTMt and inattiauable pridlep of halng tried by their peon of tha lidaagifi
awording to the oonne «f that taw." Th^ farther rwdvnl, "that they were eMllMJ
to the benoAt of nicb of the EogUili ttalntwuexblfd at ibetimeof tbriroolaabatSsat.
and wkich tboy hare by expMicnoe napodivdy bund lo he apidicaUe to their tertnl j
and local cininiuttaucmk" Tbry alw TtadTed, tlwt iLelr UKMton at tke time «f tbtlr |
emigntian were "tulilM" {aot tothe ri|{httariiwn, of et]«trial«dnna, but) "tnatl
the right*, tibertin, and inmunitin of fne and naturai-bom Mbjcct* with'.a tha mtlm
of RngUnd. ~ Joomal of CongroH, Dedaiatioa of Ri^Ia of tha ColonUa, Oct. II, 1 774,
n>. S7 lo 31.
1 Chalm. Opinfone, 90^ 220, 39S ; 1 Oialiii. Anab, «T7, «81. ttS 1 1 TWfc. BImIc.
ComtD. SSI : 1 Kent't Couin. SSS ; Joamal oTOongma, IT74, pft. 38, SS ; t Wlbon'*
Uw Uct. ii, <S. y>: I Tnck. iUaok. Comn. App. 380 to S81 ; Vaa Keaa w. Pnckud,
i Pttcra't Sap. R. 1S7, 14i.
<«) Mr. Jadtnoo, m will he Mta fren
tin •inotatioa abore. iU not qiwatkn, bat
«i|T»wily iatrt«l, that the Engliih ooin-
■MO law waa in foroe In tha eohMtM ; t«t
h» «f«*fca of it •« having beta a«o*pt«<l hj
the osbniati, «bo night on tbeotlMrhand
hare diMtii to rqact it. nirthct oa i» the
•one letter (l« Jodga TyWr, JedmoB'i
Worita, ILeSfheiay*: "Theunteof tha
bgUih Uw ■! the date of «ar fcnlpalien
OHwUtittnltliaiyUamMliyilatlHC*." And
is hie Hole* c« Vii^iua he nyi: "Tbe
Uw««IEn||laDd «oe« t«htTebeeaaAv«crf
by coMtent of the Kitten, whidi Might
eaaUy enoo^ hat* been dose whflat they
were hw H>d living all together. Of (itch
adoption, however, we hare no othcf proof
thn their practice till the jear IMl, when
Ihcy vece exprnaly iada|Ud bjr an act a(^
the teeetably, aiotpt •» hr aa ' • differ* <
•HI* «f condiikin ' ramlefvl then InapfiU' j
cable.- J««M0M't W„tkt. VIII. S74.
aleo Ibid. IX. *St. Vb*-^ at the biMkl
oat of the BeTolution, the law* were n>-
TMed by ■ eoamMoB, of whldh Mr. Jef.
(•r*OB wai a member, tlie common taw of
England wai made the baai* of the reria-
ion. JtSnaoM-a Worka, VIII. 179. The
tnw mle *• to the estaBl to wUch tbe
oewnnon law pvrallal In the eolonim te |
thai Matfd by Ur. Sailkt Story, in on* '
of U> JodiaUl deciriom. " The eommaa ;
CH. XTl.]
ORfERAL RErtew.
Ill
§ 158. We thus Beo in B very clear lt.?ht the mode in which
the oommon law wus first intnxtucod into the colonies; us well
08 tho tTU« rea«on of the exceptions to it to be found in our colo-
nial usages and luwa.' It wax not introduced as of orifpnul and
universal oMigation in its utmost latitude; but the limitatioDS
contained in the bo«om of the common law ilKvIf, and indeed
constituting a [lart of tho law of nations, were affirmativclj- »ct<
tied and recognized in tlie respective charters of settlement
Thus limited and defined, it has become the guardian of our^>o-
liticat and civil rights; it has protected our infant liberties, it
has watched over our maturer growth, it has expanded with our
wants, it has nurtured that spirit of independence which checked
the first apprQa<^hefl of arbitrary power, it has enabled us to tri-
umph in the midst of difficulties and dangers threatening our
political existence; and, by the goodness of God, we are now en-
joying, under its bold and manly principles, the blessings of a
free, independent, and united goTommcnt.*(a}
1 t Wllaan'* Luir ]jteL 49 lo 55 ; 1 Tuck. BIwk. Comm. App. 880 to 3St i 1 Cteho.
Opblonii, tSO.
* The quntteo, whatli«r th« eommon Uw » ^ipliMble to th« I'nitisl Stalis, in thcii
ntttoiul duractcr, rdatioiii, kad ({oTiramcut, Iim bcm moch liiriiwiil at ilSeniA
law «f EBKUod." he ttya, " u not to be
tsbm, ia all mpcvU, Iq b« that of Amtn*
Um. Oat anctatont bKnij^t vtth thini Ita
RMcnl prindfdM^ and rlalmiKl it u tli«lr
Mrtbrif^t; bnttbe; brought with th«ui
•ad adofittd oaljt that portton which «aa
apjilleabU to their condlllon." Van Neat
p. PMlunl. 2 Pet. HI. SmoImi Chtaholm
V. Oexagia, t Dall. 13S ; Town of Paolett
*. CUHc. 9 Cnneh. 1S3 : Whcalon v. Pe-
t«n, 8 Prt. Ht. The acta of rarliammt
paaad aft«e the a*tU««n*ni of tho AineriftUR
(olMiv wtrp not i> fMtie thtrrin, iinlinii
madt M bf •^xpra• wocdi or by aduption.
CMiumniwnilth v. Lodfcr, t Oratt. GTO ;
IVmble K ainbrd. ! HntVinl. SI. S«4
abo Bakw >. UatI'Mk*. Quincjr, 73 ;
Uatheart rr. BoUiMan, B Pet. 380 ; Swift
«. Towtey, & lad. 1M. For the diBenat
Tkw* taken by Rnf^iali aad American
■MaenMn iipen the Midfeet of thi* aot*
prior to the R«Tal»tioa, tn VorL* of
riwklin. by Rperks IT. 3;i.
lai " It fa deu," Mfi &tt. Jaitlce
McLcen, in Wlimton v. Pelerx 8 Ptt.
0S8, " that thera out be no canunoQ law
of the ClaiUd ^latn. The Fodcnl |or.
ernuioDt ia cDm{>niml of tw«nty-four tover-
ei^i anit InJrp^ndenl i^latra ; eai-h of
whiuh Ilia/ Iisvi< it! local luugr*. ciutoni!),
and common law. Thcn> ii do pnuci|i1e
wht«h pcntndo tho Union, and hu th«
BBtharity of la«, thnl Ix not rnibodictl in
the Cuuititutiun ur Inin of the Union,
Thu comoton law could be m&dc a part of
OUT fedeni ayatem only by Ufpilatirt
adoption. Whun, ihvnirorv, * conimun-
law ri^ht ii au«rt<<d, we luuat look to tbe
State iowhich the con trannyotigiaatcd."
8or to tho aamo effect, Kendall e. tlBitad
BtatM, 13 Vtt- yu ; Uman r. Clarke, 2
)loLMa,9««. ThcnronlheUniteJStaM
awnot emtcbe ft oenoMa-law jumdiction
tn etiminal ca»«. Confteaa mait fltat
nuke ail act « crime, afllx a paaUknuBt
to it, and deelan the mart that aholl Imtb
jnifadiMiciii d the offraoe, before each
oonrt «a take ocgnUanot Iheneot. Cntiid
112
HISTOer OP THE OULONiEih
[aooKL
pntoi* or Ibo gDnmractnt, principatlj, bowanr, with ntetmat to ih» JuiUdlctlon ud
|iiiDuliiaeiitof cwnmam-Uir ofTononb}- tha oouils cT tha <?nll«il 8ui«*. It leoali bes
meat extTMrdinuy lUIn «( thin^ tlut tbeocannon I>« ihouU tn thebaiUof theJam-
praiUnw of du StatM oiigtaaDy compomng tb* Union, and jct & go vmuirat iagraTtad
apon the oxkliiig tfiitatii Aonld bar* no juriafcndesce st aU. IC nub bo Uu iwntt,
thtm la flu gnU* rniil no ruin fur tlio oonrta of the United Statu*, or. Indeed, (er anj
olh«r department oTgcmmiuvnt, Id IbeeoMtciaaofanjof Ihn powara «onnd*d to thtm,
exMpt M far aa Congnsa hai Uiil, or aliall lay, duvu * ru l<i. In th« inkinanae maaaof
righta and datiea, at rontnota uul cUiou, growing out of the Contlitutioii and Uw* of
thcUnllod Statn (u]>on wliich podttTD IfgidUion baa hitherto done little o( Milling),
«h^ 1* the rule of decialon, and intcirprot«tiiiii, and rtatnotioD t Snfipoae the iiMpleat
MM of uoulraut wilh the gavtmment of the United Statn, how ii It to b* •snabniad ■
How ii it to be irnformd I What are it« uhligullaTit J Talo an act of Conpaw, how
i> it to lie interptrlfd I An llie rulMi of tile common taw to fimidi Uie proper guiihv
M U t/vwj court and dopanmoit to giro it any interpretation it majr ftrw% neaonliiig
to It* own aibltiuy will t My di'nign ii not hem to tlitmia the anlject ((«f tiutvoold
re<|uirearotuntv],liut nthtrlnaiiKRiHt wiineof thrdlfficulllniattnidanlBpon It. Hiom
noden who ars deairoui of more nmpU iDfomutlon are rrfftT«d to Ditf«DMa« on the
JwiHlletlon of the Conrt* of the Uuil«t SUIea ; to 1 Tocker'a Black. Camm. App.
DOtaE, p^ 879; tol Kent'a Comm. Lcct 10, ppuSll to 322; totberepoKof the Vif
ginis kgbtlatui* of 17»»-1SOO ; to tUwIe on the ConRtltutlan, di. 30, ]k ise ; to tW
North Amoiiotn Kcview, luXj, ISIS ; and to Mr. Bayard'a Spnadi In lh« Pebataa oo
tlM Jndiciarr. in ISOl, p- 378. ott. Seme other tinuuia iUuaBatiire of it will necoMf
rily artin In diiKuaiing the nitgect of impoicbinonta.
SuUa V. Hudaon, 7 Ciuoh. 8S ; Cnltod
BtatM *. Lanarier, S UcLmi, 133
Cnitad Statu r. New Bedfoni Driiier,
Wnod. ft U. 43£; Unltn) Stat** v. Wllaon,
» Blalck 136. Unt the national COUttl,
•fttr jnriadklim koonfand, am to look to
tod fb
S3; toi
, t (h
:b» mmmoB hw, Ln tha abaaneo of (Uto-
ir]r tffovinoni, for rvln to guida tban in
ic rxerda* of their tnnetlaM, In crialBal
a* well at dril caan. ConkUa^ TMtiN,
81.
CB. xvn.]
GENERlt. AETIEW.
118
CHAPTER xvn.
OEXERAt RK^'UrW 01' THK COLOHIKS.
§ 1-59. Ix respect to their interior polity, tiifl coltMiien hare
m very properly dirided by Mr. Justice illackatone into three
r»orta; nanjcly, nroyincial ppojingtary, and charj^r (|otBmmiinty.
Firtt, provincial eatabliahraeiita. The coiiHtitutiona of these de-
pended on the reB|)ectiTe comniiBsiona iaxued by the crown to the
aremora, and the instnicttona which usually accompanied those
cmunitisionii. ' Thc»« cotDiniasions were luuully in one form,'
ppointing a governor an the kio^'a rcprvacntutivc or deputy,
who was to be governed by tlic royal inatru<-tiom, and styling
him captuin-gcnenil and govcmor-in-^hicf over the Province, and
ebancvilor, viv«-udmiral, and ordinary of the satno. The crown
|tUo appointed a council who, iK-sidoa tlieir legislative authority,
rere to assist the governor in the discharge of bin oificial dutiirs;
jid power was given him to t(U8|>ond tliciit from ofRcc, and in
ease of vacancies to appoint others, until the pleasure of tho
^crown should l>e known. The commiMions also contained au-
thority to convent n general assembly of representatives of tho
freeholders and planters;* and under this authority provincial
assemblies coniposetl of the governor, the council, and the repre-
sentatives, were constituted (the council being a separate branch
or upper house, and the governor having a negative upon all their
proccedingH, and also the right of proroguing and diaiolving
tbem); which asserablieB had the power of making local laws
^■nd ordinaaoea, not repugnant to the laws of England, but as
t SI. Comn. l«i Stoke'a Hut. Colon. 30. SS. HP. ISI. MS: Ompct'i IL »)7,
^tlliCom. Dig. Havlgttlaa, G. li 1 Dong. Sunm. 1«3, M>te; Id. UI; 1 l>oii£. Samm.
!»7.
* SloltM'a RM. Colon. It, S3, U9, ISO. IW, 184. ISS, 101, W. 902, SST. S3»: 1
Bl. Ccoun. 109. Bukat hu gina, Ln Kit Hislorjr of tbe Cok-nin. ch. 4. p. ll», tc,
o«py «f one cf tbae connmiMioo*. A oopf b >Ik> ptdiKid to tlis Prannckl Ijnn «t
Krw Kamiahiiv, «dltioa «f 1TS7. 8m 2 Hemtl'a Uutoty of SMtll CWoUm and
[^OtorgK aad A<conBt of tbt ProrincUl Oowraiawiti.
< SlokM'* nbt. Coloa. lU, 137, Stn. W, !49, XSl; 1 Titk. Rlit. 71; I OubDm*!
\AMaila. m. 8m la P«HI>nw«tU7 l>«t>MM, Vol. II., ror 17S1 (oU Bdilion), la Ap-
. MfflM of tiM Clurtm or ae Atriw CoIobIm.
VOL. t. — ft
114
BIBTOBT OF TBE COLONIES.
[book I.
near as maj be agreeable thereto, subject to the ratification aud
disapproval of the crown. The Kovvrnon also had power, with
the advice of cotincit, to e^tablisli courts, and to appoint judges
and other mai^ialratcs and ofliocre for the Province; to pardon
offences, and to remit fines and forfeitiirea ; to collate to churches
and benefices; to levy military- foi"cc6 for defence; and to execute
martini law in time of in^'asion, war, and rebellion.' AppeaU
laj to the king in cmmcil, from the deciflions of the higheat
courts of judieatiir« of the Pnirince, an, indeed, they did from
all others of the colonics, tinder thia form of ^vemment, the
Provinces of New IIani)Mhire, New York, New Joniey, Virginia,
the Carolinas, and Georgia were povemvd (as wo have seen) for
a long period, and some of thorn from an early period after their
settlement.^
§ 160. See^ndl^, proprietary govcmmentn. Iliese, as we have
seen, were granted out by the crown to individuals, in the nature
of feudatory principalitira, with all Uie inferior royaltic* and
atibordtnate powers of legislation which formerly belonged to the
owners of counties palatine^ Yet still there were these expre«B
GOnditiuns, that the ends for which the grant was made should
be substantially pursued ; and tliat nothing should be done or at-
tempted which might derogate from the sovereignty of the mother
country. In the proprietary government, the guvemorn were ap-
pointed by the proprietaries, and legislative' assembliox wpre
convened under their authority; and indeed all the usual preroga-
tive were exercised which in provincial governments belonged
to the crown.* Tlirco only existed at the period nf the Ameri-
can Kevolution, namely, the proprietary governments of Maryland,
Pennsylvania, and Delaware." The former had this peculiarity
in its character, that its laws were not subject (o the siipervision
and control of the crown; whereas, in botli the latter snch a au-
pcrvisiou and control were expressly or impliedly provided for.'
§ 101. 7%irtf/y, ctiurter govcrmnents. Mr. Jiistii;eBlack8tono*
describes them as "in tlie nature of civil oorporatioiu, with the
power of making by-Iawa for their own Ent«<mal rcgulntloo, not
■ SlokM'i Hilt, of Oatonka, lft7, 1S8, IS^ SU.
■ 1 1>o^. Sunn. »7.
• t BUck. Conm. 108; StokWi But of Coin. !«.
• StokM-i HbL of C^ko. tt.
• 1 rik. nut. U; StokM^ Rirt. of C«1(W. 1»; 9 Door. Sdmk. 907.
• 1 CbilniFn'* Aanak, 7»t,t9J. > 1 BL Otaua. M.
CH. ITII.]
ClflSRRAL RKVIEW.
115
contrary to the tnwn of F^gUml ; nnA with such rights aiul &u-
thoritie* an are specially givt'n them in their 8«TeniI charters of
incorporatioo. They have a governor name'] by the king (or,
in Home proprietsry colonies, by the proprietor), who is his rcp-
'resentative or deputy. They have courta of justice of their own,
from whoee ctecisiona an appeal liea to the king and council hem
In Encrlnnd. Thoir Rvncra! asflemblien, whioh are thpir house of
cotomuiia, toftvthcr with their couneil of state, itoing their upper
boDse, with the concurrence of the kinjr, or bia reproacntatiTe the
governor, muko law* atiited to their own emcrirencips. " Thia ia
by no iDvoiia u just or accurate di«cn]>tioQ of {hi- charter gorcm-
mcnta. They could not properly bo considered aa mere civil cor-
.,|MrRlion8 of the realm, ent[K>wcrcd to ptutu by-laws; but rather
U great political establishments or colonic.'^, poM»cssing the gen-
eral power* of government and righta of sovereignty, dependent,
indeed, mid subject to the re«lm of England, but still possessing
within their own territorial limits the geners! powers of legisla-
tion and taxation.' TIte only charier governments existing at
the iieriod of the American Kevoliition were those of Massachu*
MttH, Rhi>de Island, and Connecticut The lirst charter of Massa-
chusetts might be open to the oljjection that it provided only for
a civil corporation within the realm, and did not justify the »»•
sumption of the extensive executive, legislative, and judicial
powcm, which were afterwards exercised upon the removal of
that charter to America. And a similar objection might be urged
I ^fAinst the charter of the Plj-moulh colony. But the charter of
''William and Mary, in Ififtl, waa obviously upon a broader foun-
dation, and was in (he strictest sense a charter for general politi-
cal government, a constitution for a state, with sovereign powers
' and prerogatives, aiid not for a mere municipality. By this last
charter the organization of the different departments of the gov-
ernment was, in s*>me respectii, similar to that in the provincial
gnrenimenta ; the governor wan appointed by the cro«-n; the
Gooncil annually chosen by the general assembly; and the house
of reprraentativffl by the people. But in Coniiectic»it and Rhi>dc
Island, th« charter govcrmncnts were oi^nixed altogether upon
popular and democratical principles; the gorornor, cotmcil, and
• 1 Cbtmn*! AbiuIi. 374, 9TS, S9S, 687; 1 T^A. Itlwti. 1>ann. .Kv^ SS9; 1 ntlc
Birt. IM: t Hatch. Blit No. 13. p. B2»i Mmm. 8uu Pwpm, 833, SW, US, 9Mi
Stohct'i BiaL of Cnlcn. tl; I Dooj. Sonim. 907.
116
BtSTOKT OP TDK C0LOKIK3.
[woe U
OMcmbty being annuallj^ <-ho«en by the freemen of the eolonj.
and 1)11 oth«r utliccra appointed by their authority.' By th« stat-
utes of 7 £ 8 Williun S (ck 22, § OX it iru indeed required
that all governont appointed in charter and proprietary goTem-
menta should Iw approved of by the crovn, before entering upon
the dnties of their officej but this statute van, if at all, ill ob-
nen'ed, and Aeonis to have produced no esaential change in the
colonial policy.'
§ 162. The circum3tanc«e in which the colonics were geni'^rally
agro«d, notirithstanding the divcrBitit-s of their or^uizution into
provincial, proprietary, and charter govcrameut«, were tlu: fol-
lowing ; —
§ 163. (1) Thoy enjoyed the rights and privile)?ea of British-
born Hubjci-ta, and the benefit of the common lawn of Enj^kud ;
and all their laws were required to be not repugnant unto, bat as
noar aa mii^ht be, agreeable to, the laww and statutes of England.'
This, as we have seen, was a limitation upon the legislative
power contained in an express clause of all the charters, and
oonid not Ut transcended without a clear breach of their funda-
mental conditions. A very liberal 6spoeition of this clause
seems, however, always to have pi-ovailed, and to have been ac-
quiesced in, if not adopted, by the crown. Practically a])cakinit.
It seems to liuvo been left to the judicial tribunals in tliu colonies
to ascertain what part of the common law was applicable to the
situation of the colonics;* and of course, from a difference of in-
terpretation, tlie common law, as actually administered, was not
in any two of the colonies exactly the same. The general foun-
dation of the local juriBprudenee was Cioufessedly composed of the
same materials; but in tbo actual superstructure they were va-
riously comltined and modified, so as to present neither a general
symmetry of design nor a unity of executjon.
§ 1&4, In regard to the legislative power, there waa a atill
greater latitude allowed; for notwithstanding the eautions refer-
ence iit Iho charters to the laws of England, tlie aasttmbtios
actually exereised the autliority to abrogate every part of iba
t ChBtmBn'i Anuli, at, S». 391; Slofcca'i Biit. Cdoii. SI, tt, SS.
■ 1 Chahnvn'* AllIul^ MS; Sukn'a HJit. Cblcm. SO.
• Com. 1%. N«r)9tu)a,G. l;U.Uj,C.i2 Wil»M'tU«rl«ct.43,M, G<l,5I.S«.
• 1 Chalnicii'a Anntli, 877, *7S, ftS?; 1 Tncktr'a Bbok. Camm. SSI; I Vrt. Ui,
H9: t WOmb'* U> Lftet. U to St; Uan. atate Fapcn (td. ISIS), *Tk 8*0. S>1.
CH. XVII.]
GEiteSJLL BEVIEV.
IIT
common Inw, cxcopt that which united the colonies to the parent
state b}' the gcueral tios of allegiance an<l dependency ; and every
p&rt of the 8tatut« Inw, except thoac acts of Parliament which
expreraly prescribed niles for the cotoniiM, and newaHarily )>ound
them, as integral pnrt« of the empire, in a genera] Bvslem, farmed
for all, and for the interest of all.' Tagnanl this superintending
authority with more effect, it was enacted by Parlianient in 7 £ 8
William 3, ch. 22, "that all lavrs, by-laws, usages, and customs
which should be in practice tn any of the plantations, repugnant
to any law made, or in bn made in this kingitom relative to the
said plantations, shall be utterly void, and of none effect."'
§ 165. It was under the consciousness of the full poaae«»ion of
the rif^ta. libcrlicx, and imtniinities of liriltsh subjects, that the
Colonists in almoflt all the early legislation of their respective as-
^rablicfl insisted upon a declaratory act, acknowledging and oon-
Grming them.* And for the most part they tlius succeeded in
obtaining a real and effective Magna Charts of their libertieo.
The trial by jury in all cases, eivil and criminal, was as firmly
and as nnivcr&aliy established in the colonies as in the mother
country.
§ 166. (2) In all the colonies local legislatures were estab-
lished, one branch of which consisted of rcpnrsentativcs of the
people freely chmen to represent and defend their interests, and
possessing a negative upon all laws.* We have seen that in the
original structure of the charters of the early culunics no provi-
sion vas made fur such a legislative budy. But aocustouied as
tbo colonists had been to possess the rights and privileges of
Englishmco, and %-aluing as they did above all others the right of
rejireftcntfttion in Parliament, as the only real security for their
political and civil liberties, it was easy to foresee that they would
not long endure the exercise of any arbitrary power; and that
they would insist u)>on some Hhare in framing the laws by which
they were to he governed. ^Ve find accordingly that at an early
■ CWnMn'a .Kanah. 139, 1*0, (71. OTJ, Mi. SST; 1 TDcki-r'i Blktk. Comni. 3S,
I.: 3 warn-! Uir l^t. 49. SO; 1 Doog. Summ. SIS; ] PJtk. Hid. IDS; Mm.
PapoK, StS, 310, 3*7, 3S1 to 304, KS, VO; Dainmar'a Dcfeoo*. 1 Aatnaui
.«&, Ac
I StokWa Cabn.
< 1 Pitk. HmL SS. 89: BaUh. CoU. 901. 4e.; 1 Chalmmi AonUa. 67Si S VvuK.
lam. in.
• I Doug. Soimi. 313 to SIS.
m
118
HISTOKY or THE COLONIES.
[BOOK I.
period (1619) a house of burgesacs was fonwd upon tli« tlicn pro-
prietors of Virginia.' In Maiuauhtuctta, Cotincclicut, Now Htunp-
Khire, and Rhtxlo laloud the Biunc oouret- wad piirauvd.' Aud Ur.
Uutcbinson Itao currectly ulwun'vd tlwt ull tlic coluuics before tho
reign of CtiarlcM tJie £k-coud (Marylaud alooc excepted, wboae
charter coiitaiat.<d un cxpross provision on tlie subject) settled a
model of govenuucnt for Uioiusclves, in which the people bad a
Yoice and reprtmentatioii in framing the laws, and in asaentittg
to burdens being imjKiscd upon theniaolvca After the restora-
tion, thtru wait no iustance of a colony without a representation
of the people, nor any attempt to deprive the colonies of this privi-
lege, vxoepl during the brief and arbitrary reign of King Jaue*-
the Second.'
> BatwrWin'a Amnlnt, B. 9. * 1 Tiickpr'a BUck. Comm. App. S86.
* 1 HuU'h, UbU Mm. i>(, not«; 1 Doug. Suniii. IIS. Mr. IlulchluMii'* temuk*
■r* ecliUrd 19 (onwlliing more th^n thu brief iiolio<v ui<I a •)<iuUtiuii 1« thvNfai* nuiU
trf the \milng F**"g°- " It 1* obMmbU that all tlie ooioaisa beCiira Um nign of
XtnK Charica tba Secoiul, Maijlaml txot-i'Ud, wttled a model of gurenuncoit tot thoai-
■elrat. Vlr^nU liul lw«ij iiimiy yt*n diitnclwl undor tk« ^^'^"■■■■°'i' "^ preaiil«nl*
and gDreniore, with couuvtLi, iu whoM iioniiiiatioD or ranoral th« pwopk had no rdw,
uulil ia thv yam IS'iO a hausv of burgBoo) broke out ia tb« coloay; the kh«g aot Uw
Ktatid ooBndl at lininc not having |[jvmi any powm or dlrectioui for it. The garwMt
and anlaiaata of the Manavbusetta at &nt £ntend«l to iiila Iho ptOfde; a«d, H ■<
hare obanvtd, obtainsJ their cooMBt for ft. but IhU lw(«d l»a «t tbm ;an Miljr;
and alUioug^ thrra in no color for it ia the ahaiter, jtt ■ hooae of dqiolie* appeared
MuMeoly, in 10$4, to tbe mrprue of the nia^stnrtc^ and tb* dlMpfieJiUmant of their
•dianua (at pomtt. Connecticnt acion atlar lollonod ilw phtn of tK* HnHaehiuwtU.
Kav IlaTDD, although tba paopU bad the hlghaU irvtNnoa (or thiar leadn^ and Ihl
tua* thirty rwi* ia JuJivial procmdIngH subanHed lo iho majiisttafjr (it imut, bow>
enr, be nmnnbered. that it waa aBnoaUf deeted) without a jurf ; x« in matlen ol
IcgUUlion tbe peopUk b«a tlw li«u,liiiiiinL woald hara their ibara bj ikfir Hprwf (*■
tirea. Kew Hanipahm oanUnad together aniiw lb« nma fonn with MaMaohaaMU-
Lonl Saj tcmiilMl lb* pfiiicipa) bmu of th« UawwhiMrtt^ to make them and thdi
bsln nahim aifl ataolul* ^rtnon of a new cohMj ; bat. ODiler tbia pliK. thef emM
tai no froiA* to fblbxr tiiMn. Barbttdoe* and the Laevard bhutd*. bq{w fa ISM,
aIniffilH UBdv gorerson, and fiounoflik and fpataadtng (Mfirfetoia far abont tiNAty
jFtBTK Mnaibcn anBtnd dtath b; the arbitrary afstmeai of courta-aairUal. or othar
acli of rlolf to, aa om •td« or th« oUior bapprMil to fravail. Al Iraglli, In 1«I5, tba
•JBnDbly waa aalltd, and no naaan gfran bat Aa, ric ; That, bj the gimnt oT tiM
Earl of CatlbJa^ tb* inhatatanta were to trnjoj all tba Hbertiest priril^ia. and ftaa-
vUaaaaC Kn|;li>li labjeota : aad tberefoce, ai it ia abo eiprceal; nralfoetd in tb<
gnnt, could n«t li^lly bo boond, or {har]{ol b^ any act wftbonl Uteir own ronaanL
IUj gnuil, in 14t£7, wai uiade b; Cbuloi tba Pint, a ptinc* Nt tbe IDDat laudv of
tb* aBk^tcta' llfaartiea. After the rtatoralion. (h*rr la no inibuioa of e «i(aaj •attlad
witboat a rtpmanlatlan of the paofilfv nor aur atlnmpt to deprive ibo ooloaiai o{ tUa
priritfgr, CMept in tha atbittaiy irfgn of King Jamot tbe Sraobd."
CH. XVIl.]
OBMEIUL RKTIRW.
119
§ 167. In the proprietary and charter goremmentfl, the rigbt
of Ute people to be governed by laws established hjr a local legis*
laturo, in which they were repreflented, was remgiiiu^d as ft
ndamentai principle of the compact liiit in the provincial
ivernments it was often a matter of dobate whether the people
had a n'l/lit to be ropre<iont<!d in tho lopislutun?, or whether it
waa a privilege enjoyed by the favor and during the pleasure of
the crown. Thi! former was the doctrine of the colonists; tho
,tt«r was maintainwl by tho cro»-n and its lejjal adirisera. Strug-
'f^lcs took pla«M- from time to time on this subject in Bomo of tho
prorincial atuwuiblies, and declarations of rights were tlicrc drawn
up, and rejected by the crown as an invasion of its prerogative.'.
The crown nltio claimed as within its exclusive compcteneo, tho
right to decide what num)>er of «L-presentutivcs should be chosen,
and from what places they should come' The provincial asscm
hiies insisted u|>on an adverse claiuL The crown also insisted
on the right to coiilitiuo the legii^Intivc assembly for au iudcfiuitc
period, at its pleasure, without a now election, and to dissolve it
in like manner. Tho Utter power was admitted, but the former
WM most stoutly rvsisted, as in effect a dv^lruction of the popu-
lar right of repreitentation, frequent elections being deemed vital
to their political safety, — "a riglit," as the Deelaralion of Inde-
pendence emphatically pronotmces, "inratiinablc to them, and
formidable to tyrants only."* In the colony of New York tlto
crown succeeded at Inst (1743)* in ralnlili»thiug septennial asi*ein-
bltes, in imitation of the septennial I'arliamenta of the parent
country, which was a measnro bo offensive to the peo]>le that it
con»titut«d one of their grievances pro]>oundod at tho oomnienM-
meiit of the American Revolution.'
§ Ids. For all the purpones of domestic and internal regula-
tion, the colonial legislatures deemed themselves putsessed of en-
tire and exclusive authority. One of the earliiat forms in which
the spirit of the |>cuple exhibited itself on this subject u-as tho
tant denial of all power of taxation, except under laws passed
thcmsclveB. The propriety of their resistadice of tho claim of
> 1 Pitk. llirt. M, n, STi 1 C'Inlni. 0|<in. ISf; i Dco^ Suinni. 951, ttt.
> 1 Pitk. Uau 88i 1 Clubii. Opis. MS, ZTti S Dong. Suinw. 37, M. », M il.
T3 : Chdur. frwrvg. ch. S.
• 1 Pitk. tliM. 8«. S;. * i Pttk. RM. BT. «>.
» In Vintuii>UiwtlwuM»l)UNtr«nMirtiflaU. Th« r«>lirall«l, K<x fiS.
120
HISTOBT OP THE COLONIES.
[BOOK I.
tbo croten to tax tbcm seeais not to have been denied by tiie most
Rbrcniious of their opponents. ' It was th« object of the ktt«r to
subject tliem only to tha undefined and ariiitniry power of tuxa-
tion hy Parluimitni. The. colonittta, with a finnnt'^s and public
spirit which striki-s us with siirpriHC and udmiration, claimed for
themsclvca and their posterity a total oxomption from all taxa-
tion not impodC'd by tLcir own reproAcatatirvn. A dcxrluratioD to
this effect will hti found in some of tlie earliest of cvleuial Ivgis-
latJOU, — in tlmt of Plyoiotith, of MaKMchusc-lts, of Virginia, of
Maryland, uf Rhode Island, of New Vork« and indeed of most of
the other colonics.* Ilie general opinion held by them was, that
Parliament liad no authority (o tax them, because tlicy were oot
represented in Parliament.'
§ 109. On the other hand, the statute of 6 Oea 8, ch. 12,
contained an express declaration by Parliament tJiat "the colo-
nies ajid plantations in America have been, are, and of ri^t
ou^t to be, Rubordinat« unto and dependent u|>on the imperial
crown and Parliament of (treat Britain," and that the king, with
the advice and consent of Parliament, "had, hath, and of right
ought to have, full power and authority to make laws and statutes
of snUkient force and validity to bind the colonies and people of
America in all cases whataoovcr."*
§ 1T0. It dot's not appear that this declaratory act of 6 Geo. 8
met with any general opfHWition among those statesmen in t^g-
lanJ who were most friendly to America. Lord Chatham, in a
speech on the ITlh of Dccenitier, 1765, said: "I assert the au-
tJiority of this country over the colonics to be sovereign and su-
preme in every circtuustance of govommcnt and Icsislatino. But,"
he added, "taxation is no part of the fjovcrning or legislative
power; tAscs are the voluntary grant of the people alone"* Mr.
> Chalin. Aotdli. 6S8, Sjl, <33, 080, eB7; SM. 0 Cm. I; oh. 1!.
* 1 Pttkin-i BbL SO. »D, 01; 3 Hofann-a Anadi^ 13S. ISI, lU; 3 Do^. Siunn.
9U: 1 DoDX. Sumn. SIS: S HatoiL Call. S29, SM.
* 1 PStkiii, 8S, &c. «;. 1ST. ISt; Huik. Coloo. Sit, 3S3: Ap|>X. 400, 470. 473:
Chains Annali, SSS.
* 0 Gm). 3, tb. 19 ; StekM't Colon. S8, 39. 8m tbo Ifimhan oa Colon, ob. IS,
p. »S ; Vai^lwB, B. 300, 400 ; I Pitkin'i BIH. 13».
* lb. Bnti« hM ikvlnh'J vith ■ mort mutnli- buid thn tn» origla «/ IkU iWit-
aaw to tba paver «f uutioa, Th* paMage i* ki fall «( kia btat «laqiiinio«, ami par-
tner* "^1^ ""'^ atnkias MeUly the ehanwWr at thn nUcmiMi, thai, nolvitlwIanUng
lU lengtk, I am tMBpCcd to Uy it Man Ihn raadar In Ihlt notK.
" lo tU* clumctar of the AawrtcaM, a lor* of tittdom U Dm pmlanniatiag tmijut,
CH. xm.]
OeNEBJLL BETIEW.
121
Burke, who maj justlj bo deemed the leader of tho colonial ad-
vocates, muinbiiucd (be suprcmac}' of Parliuucat to the full
which uuikt Ktiil dislinpiUha ihs whcl*; *n4 m to uvknt It alnrs ■ jtaloiu ■S'««-
don, jXMreotcaka bMuain BUipiciotii, mtivPt tixl untrMlxMr, wliciiirvt Ihcjr mc the
ItMt attMnpt to wnt,i frcno thom b; lorte, or ihullti! from tbcia by chioiuc, wliu Uwy
tUnk th* only adranUg* vorth living Itr. Thu fipTci! apirit of lilinty in »trnng«t In
Um EHglUh ooloiitnt pi«)«hly Ihui in any other |«opU of Ihn e*iib: anil lltw from a
gnat <r>ri«(y of pumrful cauwa; which, to undpnlAnil t)ir trow iviiijHr of Ihcii teinili^
and tlha ilira^lMil wbieh tbi* ^liiit Uluk, it wUl not W uuin to lay opeii aoucwhaX
moft lately.
"Fim, tha proide of th« mIohIm uo dMCtndanU of Knxl'^hmnn. EiijtTuxl, Sir, la
a nation which atill, 1 tiope, rwp«cla^ 4iid tunniTly iilonnl, hi-r frrcluiii. Th« coloniiM
«B|%I>I<(1 from you, wh«o thii |*rt of your cliiiacter wiu tiioal firHlomiiuiiil: tftd
tiicy took thii bias aoil diiwciou the tn-Hncnt thi'y luiIcd from joiir haniii. Tlicy 4i«
tli(*Tfoii« not only dcrol«i to liberty, but to liberty accordJas to KatHiali idral^ and on
Entcliah principle. Alulrat^t liberty. Ilk* aUi«r in«« abninicUonH, tt not to Iw found.
liUrty inli'^nu In soriiii miihIIiIu objoct; and pvery naliou liiui tonnol to itself loim
farorit* piiiul, whidi by way uf Bmineni:^ bMoniea the cHtsrion of ihdr happincnK
It happriiHl, yon know, Sir, that tbo gnat cobteU* Cor bccdoni in thu countrf
wwo (ram the cailiut time* ohlelly upon the quotion of taxing. Uou of tha <i>n-
Iwti in the ancient couininriwDalthH tiini(4 ]ii-liiuirily mi llut right of elrvtion of magb-
tt*tM, or mi thu lialaiiVB among the Hvprat ordera of Ihc atata. The queitioa of money
via not with tbrui » imiuodiute. But in England It «v otherwjio. On thii point of
laxea tlM ablett jkui Aiid nio«l rloiiuoat longota havs been exerclacd, the gnalart
■pirita h«Tc wtflt nnd lufTi-rcd. In order lt> gire Ilis fnlleat aalisfaiitloo conwrnlng tha
knportaiMa of thu point, it wta not only nrwuary for Ihoao who in arj^nioiit defended
llie exotUvnoe of the EiigllKli KuuHlltutlon to inaiit on this pririUiie of granting mnnay
•aadrypoint of [act, and lo pniva iliHt IIjd rlitht hwl Nvn ii^knnwlitdgiHl in au«ltnt
parthoMDla ami blind uiuigi:( to mide in a ci-rtiiin liody caIIwI ihv Uouw uf Cominont.
They want nanch hrthet ; tlipy nttcmiptol to provp, and tlivy tucciTdrd. thai in tbroty
It «nght to he M, fMm the particular tmtiirci at n home of commona. ai an Immrdiate
RptMatatinxir the peopK wlirther tlir old tv.iit\h h*l di^livered Ibi» oracle or not.
They took infinite paini t« iiiculcato, u a fuudiinu'nisi pnucii>Ie. that in all iD«a-
aicbk* the pMpte imiHt in effect tliamudrM nicliat^^ly or iniTiii'dlately jxinMi Iha
poww of panting their own miinoy. or no ehadow of libmy couU aobwil. TTw rd-
MiiM .l«w fVom yon, aa with their hfe-blood. thM> ide^ ul principl™. Their lone
«* liUirty. aa with you, liied and attached on ltd* «|»c*Bc point of taiingr' Ubtrty
mi^t be afe or <Bi|{ht b» vndanacnd In twenty Mm putlnlar*. wilhoat thalf bcaag
awdi pirnwiil or aknned. H'tv thiy felt iti ptiW; and aa tbey feand llial bnu they
thoniht Ihi^rlrra nek or aennd . I do not lay whethar they wen right or wrong iu
applying yoor (pwt«l ugwimta to IbeJr own ««•. It b not aa*y indeed to mako a
nOMpoly of tliMtaiM and oerfolbrien. Th* far* ia, that tbey dnl thu apply iboao
I anomentn; an-1 your imaile of gvroming ■>>•«, whether through Iwiity or iu-
dokDM, thrangh winloni or niiatake, oeAllnned tWn in the aaagination, that tbry, u
wvll aa y«B, had an interest In Ibea* nanmon ptinciplca.
"They wen- lorther conftrmed in Ihia p1nuitii« error by the tbrm of thdr pmvlndal
Iqilidatlva aannbKBa. TVtr goreramenl* am ]<ap(iUr In an Mgh dtgne; lome tr«
jnttelypopoUi: In all. tbcpapnlarnfaMPnUtirelatbenHMl w«igMy: and this ahua
tf the pcopb ia their onllnniy gvnranwnt nertr fcibi to Intpln tbem with kfty ten-
122
KISTORT or THE COLOKIBS.
[boos I.
extent of the declaratoty act, and aa jnatly inctudinn; the power
of taxation.' But he deemed the jwwer of taxutiuu iu Parlia-
Ifinoiila, uid witli i tXmng tttaaoa bom whatavw Uiub to dcpliTo than or Ui^
chief inipotttnee,
" If Biiytbin^ »cR wanting to tbU utramty opcntiiiii of the rorm «l goremmmit,
nli^on would have )pven it > complete cIToct Rctigton, «i«*]ta ■ |irind{dG of mtngj.
In tliU now |>mpl« li no wtf onrn out or Impaltcd; kod tholr mola of ptofening It U
kite ona mua cauw of till* fiv* »|ilril. nii ^••n|iU tn fralnlanta ; aitd of that U»d
which i> Uui moat adrcno to all Inplicit tubuiinduu of mind and upinkm. 1%b i* k
penaiiion not only fnvoratilo to libcny. but built upon it. I do not tliiiik. Sir, that
Ilir n-ULDii of tliU arerunou in the diucntiog churchu from nil that looks lilia abao-
IdIu govcriiiiii'iit In m) miii:1i to 1» winj(1it In lh<-tr i<Tli|[loui< trnct*, u in tlidr Uatofy-
Ev«ry oui' kno"-* llmt (in- Itomun Cutliciliu retix>'>" i» "t Iwwt cwviJ witli moat of 1
guvirnniL'nta wburv it prvvaiU ; tliat it luui ({ruvmlly g-iur liund in kaiiit with lliNn;
ttiid received gtcnt fiivor iiniJ cvury kind of luiiport from authority. The Chuidi of
EnffUud, bHi, wmi fornifd froni hrr cnulU un>l«r tho nuraing can of trgular govern-
iiiruL Bui Lh# dini^iiting iiitiiresla luTa «iii-iinf; np in dinwt opijKultion to all tha^
onlinary powpn of th? world, and oould justify tint up[<miliuii only an • rtninji cbdMl
to natuial liborty. Their very onUtcncc dcpondod on tho piwcriiil aud usmnlllad^
uvrtion of tliat clulcn. All PrDtCHlAntlmn, i^v«n tlin moit cold and paamrr, ia a net
of dlwatiiL ItuI tliu ri^lijpiiu utoat pn-vHUiil iu uur Northern »i1'>niM la a nAnoiaiuit
on lliv priiiciplit of nwittaii^^vi it is the liinidpnoc of diswut: and th« I*ivt<«UMtlani <
the rrotntiuit religion. This nligion. undar a vutirt)' of dcnominatiaiDi, agrrdng
nothing tnu id tho vommunion of the iplril of llbrny, li prodnniinanl In mn*t of tlMl
Northrim prDvinuex; nht^rv thv Cliuri'h of KngUtid, notwitliituinliiig ita lrg«l right
h in reality no iiiurv llinu a sort of private sect, not campoiinii moat prahably
leiilll of tlifl fvoplF. Ths L-oloDUIa k-ft England when thin iiplrit waa high, and
tha emignuiti kos the higboit of all : and uvrn that iitr<'*in of fuiKigiMn^ wUoh hw i
(Man conataolty tinwinji Itiln thiwi i^olonU-^ hiiH for lh« frntot part bntn CMnpnaed
nf dtaa^nUrH fniiii tho fttnbli«)>m(<rili of thi'ir ni-rml conulrioa, and kavo brau^t ■
witli tlinn a temper and chvactar far from ali«n to that c/ iha pMpla wltk whe
they niwd.
"&r, I OUI porceivo by their injinniir, tliat aome gmtinnutn ot^t to Ifae 1
of Ihb daacrlptlnn, havaiiM in th» aouthvrn colonita tb« Cbnroh of England fomi
larga body, and hu a nguhir wKablinhmmt. It u turtiimXy Imr. Thora fa, bo«tv«^|
a cireuuiitancii altrndlng thvac fokaica, which. In tnf ofrinW, ftally oamtarh
tUi diffiTtvncc. and makes the spirit of Hbarty alQ) mora lilg)i and baq)thty than
th«M of the borthwarl. It la llial In Virginia and the Candinm Ihiry han •
mullitudn of iLtve*, When thi« i> the caae In any pM of the world, tboa* »bo
tif are by far tha iiioat jiruud and joalouA of their freedom. n««dom is to thnm no
only an anjnynvnl, but a kind of rank and frinlFg*. Not acting tbm that baodoaO
a* in cuUBlries whrre it U a touman UciKl^g and aa broad and pnanil aa An air, may
lia nnilad witb msch al^JMl toil, with griM tnlacry. with all lit* nxtiirinr nf afT*<tad»,
liberty )ooka auoncM thrm like asmathing that U morK noble a»d libera]. I do not
BMan, Sir, to (cmuatwd ibr lujMfcur morality nf thli MntiBeat, whieh haa at lawt
mnck inid* aa rlrt«* In It ; bnt I caanot alter the naUra of nan. no fcet la » ; i
■ Burkc'a Spaadi om TUatloa of Amaric* la 1771; Bnrkn'i Spetdi <m
lion with Auierfci^ 31 Hatdi, 1779b Be* abo hia Letlera to tha SbcfiOi ct I
in 1777.
CH. xvir.]
-okmbbal RETIBW.
1£8
mt-nt tw an iiutniu«ut of vuiiiiro, and nat u a mcanit of su|)pl}';
oud therefore Uut it sliuuld be rowrtcd to oulj in extreme cases
UuN pMjik of tli« Southern colaniui mn mucb mom itraogly, uid iritfc ui )i%h«r aiiil
I ftabbotn iiirit, attnclinl lo liberty, tbiui thou to the noTtliwud. Suck wen alt
ha aiieiuit eommonwiwltliii ; «tu:h vim anr Uolklc tncvslon ; such hi onr ditf« wtcn
th* Paha; and aocb will Lw all uiulrnt of ala*«a, kIh) ar* sot aUvci Uicanialn*. In
■nvU a |iau|Jc ttia liaiiglitiuens uf Juiuitution comtiiica «ilh tbo (pLHt of fmdam,
(ortilka h, anil ivudon ii iiiviucible.
" i'pTUiU tat, Sii', to add anotboT clrcuni»taiK« in onr colonM. vhich eoiildbulegi
no mean imit towanl* iht |[mwlh and affeul of thu nntnctabli) apirit. I nwan llmlr
iocatluii. lu uu «ouuir]r paihafa in the world u Hip b* «>fKii«nil a atuJy. Tha
lf«uiuii iunU U nuiiKTiQiu and powcrfnl, and lu luoct praviiuMi it iikrs the lead.
The gCMtoi number of tlic deputio arnl to Congieu mn Inaycn. Out all vbo trad
— and moal do pnd — oixtraTor to obtain aotiw iniatltring in that aoiciiiu). 1 liam
I told by an etiiliiiiiit bDuksdler that in no bnuich of liU buaiiiaai, after tmeta of
pillar devotion, ittn k> many booka lu tlinu on the Ian oxportcil to tha plaatation*.
Tlie coloniiti liuvc now TiiIIeii iuto Ilia WHy of [iriiilln^ llmiii fut tlii>!r own utt, I linr
that tlivy haw aold nearly a* many of Blavkntuuv's t'oniTiitiitiiiiiTt in Aincriua a* in
uglaiiil. (ienml Gage nutki out tliii dinixnition mry larliciilarly in a Ittter on jront
' table. Ue itatca tjut all the people in hla goremmont arc lanycn, or analtonra in
law i and lliat in Button they liavB ba«n aiiabltd, by ancccaafal clilRaiiis wholly t»
LMa'le many parts of one of your capital [wuut vouiitiliitiouik The ainartiieaa of da-
■ wiU lay that Ihii knowledge oilghl to tcath tlieni more tlearly the ri^hta of l»giB-
ktora, ibtiT obllKatlona to ohi-dinniv, and the prnnlti'-.i of rtibrllian. All thi* U
bty wbIL But my huoiirablv and l««inii«l Trii-iid |thi> Atturnvy-tienmd] oa tba
|iwr, who coniUacandt to nutrk what I oay (ijr uiinudvenioa, vtrll diadain th«( greontL
9< haa heard, ■■ well at 1, tint wliiin Krmt honon and Sicat eniolumonta do »ot BUI
or«r thia knowlnlge to the trryici- of llw Mal«, it la a (ormidablo adTewity lo gonra-
nent. ir the ii|ilril bo Tint inmrd and hrokau by tbnM happy mnthoda, it ia atnbhum
a«d lltigiocui. Akuitt ituJiit in tnorf. Tlua otmiy mdm nan tenf, iBqudlUTX,
driknua. prooapt in attw-k. mitly in dtfencc, full of naounaa. In uthar CMiitjiw,
the people. n»re simple and of a less itivrv^urial coat, judge of an ill principle io gov-
antnnnl only by an actual ([ripvan™; here lli»y antluljiala the crU, and jadgo td th*
fiimun of tho ^arani:' liy thu badnnu of the prineipla. Tbay auRur roiiBoTeniraait
1 • diaUMB, and aniilf th« Biii.nwnh of lyrsuoy in wwy tainted brataa.
"Tha laat camw of thli diwhtdient ipirit in thu coloniea ia baldly laaa powerful
an the rert. aa it ia not merely monl. but 1ai<l dM>p in the naturat foutiiation cf
hing*. Throe ikouaand miln of oennn lie between yxu and them. No contrivanM
pretmt th* effix't of thU <Iii>tanu> In wrakeninK goveniineni. Saaa roll, tmd
ntba paaa, baawMii the nnler and tfa« «x«vutioii; and the rant of a apacdy #iplaBa-
I at ■ ilBglB poiM U «»oagk to dafeat a whota ayatHD. Ton ham, indeed, wingad
I of Tf ngiaanea, who «BrTT yow bolia in tlidr ponrma to tha ramotaat lotgs of
Um ai«. Bnt thetv a powvr atrpa hi that tliMta Iha anoganea of mging paeons and
fctiona alemonia, and aya, 'Bo far ahalt iboa |m aud no tarlher,' Who are you
Aat ahoiild frM a»d tafta, and bita iha nhatna of natara > Nothlnic won* bippena to
^foa thaa doea to all nationa who bar* axtanaiira aaipirv | and it happcna in alt tha
isto whiefc «pir* eaa bo thrown. In higa faodiaa the drenlation of foww
' Molt ba liaa Tigorona at tlie eittemitira. Natara haa laM ft. The Tarii caanot (or.
•m Egypt and Anhla and Curdiatan a> ha goracM Thnoaj not hat h* tha mau
124
HISTORY or THE COLONIES.
[BOOK I.
for the former purjMMes. With a view to conciliation, another
act was pasAcd at a late period (in IS Geo. 3, ch. 12), which
declared that Parliament would not impose aQy duty or tax on
the colOTiicfl, except tor the repnlation of commerce ; and that the
net produce of audi dut}', or t^ix, sliould be applied to the use of
the coloDj in which it was levied. But it failed of ila object.
The spirit of roatstancc had then become etubboni and tmcontrol-
luble. The colonista were awake to a full sense of uU their rights,
and habit had made them firm, and cominun sufTuriugs had made
them acute as well as iudigimiit in Uic vindication of their privi*
legi.'tf. And thus the straggle wus maintained on each side with
unabated zeal, until the American Revolution, llie Peclaration
uf Iiitlrpeiulencc embodied in a (wrraanent form a denial of such
parliamentary authority, treating it as a gross and unconstitu-
tional usurpalioiL
§ 171. The colonial legislatures, with the rcstrictinns nccea-
sartly arisiug from their dependency on Oreat Britain, were
Bovcrcign within the limits of their respective territories. But
there was this difference among them, that in-Maryland, Conn^c^
ticut, and lUtodo IsLond the lawg were not required to l>e sent to
the king for his approval; whereas, in all the other colonie« the
king possesiicd the power of abrogating them, and they were not
final in their authority until they had passed mider his review.*
In respect to the mode of enacting taws, there were some differ-
ences in the ori^nixation of tho colonial governments.' In Con-
necticut and Rhode Island tho governor had no negative upon
doniaton in CritUM ud Algfer* which he hM U Bnw imd Smpna. Dapotiion timit
u obli|^ to track aad bvobtcn Tbe Saltui g(U n*ch obnlieaca u W on. Ho g»T-
etiu villi ■ kradN ran, that b» loajt gmem at all ; utd tba what* of tha torn Mid lifsr
of hit aaUiority In hi* oMti* li d«riFfil from < pradrat nluatkin in all kU horittt,
Spala, in h«r (irovinon. U, piriiap^ net w wU obeytd u fva an in joun. Slia oom-
plka boi ahe wilnnlra; iha WBtoha* Umw. TU» i* the imnutlAbl* coaditMn, t%»
•ttnu] Uw, of rxtavrira and detKhed «nif«ic
"Tbm, Sir. bom thiwtisMptulHiuiM^— of dMr^ni: aribnn nfginnminniiUor
nUglMB in the NtitttMni ptonnoMi of mMiicni in tka Soulbirn; oT sdiMatioBi «f tlw
IMtotmii of dtuallMi tnm lh« flnt nnrcrof forimint. —frsu all thna oaaiM a
fitaea ipiiil of libsKy h«« jruwn np> It hM gnnra «itk Iha Biwa"l> ^ tK* peaf\e in
jmu cokniid, aad incnaaed viUi the iMrvMaa nf tbtjr waallk; a tpirll. that nnhappajr
m^ing with an etnritr at povsr in Enxlaad, shlch. bo««vn lawful It niit iw-oudl-
■hlit lo any idMi of 11)>my, much ■«« rllk tWn, hai kLodlad Ihb lUiMs Hut !•
mdjr t4 cMiaome m." S Rurit*'* Wariu, SS-U.
1 1 Cbwtbns'a Aanaia. MS, SM; 1 Dong. Sum. 907, SOS.
' ' I Vang, Srana. 213.
CB. XVil.]
GBKEBAL BKHBT.
125
the Ibwb; in Pennsylvania the couocil had no ncj^iirc, but was
mcrt-ly udvisurv to thv cwcutivc ; in MussochiiiHjtlK the coHncil
was choMn hy th« legislature, and not by the crown, but tbo
tgorcrnor had a nej^live on tlie choiw.
§ 172. (3) In nil the colonit-s the lands within th«ir limits
were by th« very tcnns of their original ^rantn and chnrten to
Ite hoMon of the crown in free and ooromnn nocage, and not fn
eapitr, or hy knight's iKn-tc«. They were all holden either as of
tlie manor of Kast Qreenwlch in Kent, or of the manor of Hampton
Court in Middlesex, or of the <:astle of Windsor in Berksliin;.'
All the slaviah and military part of the ancient feudal tenures
Iwaa thus effectually prevented from taking root In the American
|»oil; and the colonists escaped from the opprcaaive burdens,
which for a long time affected the parent country, and were not
al>olished imtil after the restoration of Charles the Second.'
Our tenures thus acquired a uni venial simplicity; and it is be-
lieved that none but freehold tenures in socage ever were in nsO
among us. No trace* arc to be foand of copyhold, or gavelkind,
or borgago tenures. In sliorl, for most purposes, our lands may
bo deemed to be perfectly allodial, or held of no superior at all,
though many of the distinctions of the feudal law liavo necessa-
rily insinuated themselves into the modes of acquiring, transfer-
ring, and transmitting real estates. One of the most remarkable
circumstances in our colonial history* is the almost total absence
of leasehold estates. The erection of manors, with all their at-
tendant privileges, was, indeed, provided for in several of the
eliarters. But it was so little congenial with the feelings, the
^vanta, or the interests of the people, that after their erection they
' gradually fell into desuetude; and the few remaining in our day
' »re but shadows of the post, the relioa of fadi-d grandeur in the
last steps of decay, enjoying no privileges, and conferring no
|M)S'er.
j 173. In fact, partly from the cheapness of land, and partly
from an innate love of independence, few agricoltuml estate* in
the whole ountry have at any time bc«n held on lease fur a stip-
ulated rent. The tcnuntti and occupiers are almost universally
the proprietora of the soil in fee-simple. Tlic estates of a mora
limited duration are prliicipnlly those arising from tlie acts of
the taw, such as estates in dower and in curtesy. Strictly speak-
> OrahsM't HUt. 43, 44. * Stol. II Car. 1; cb. CI.
126
BiaTOBY OP THE COLONIES.
[BOOK
iag, therefore, there hut ncrer boon in this country a dependent
peoMuutrj-. The yeomanry are iibftolubc ou-iicn of the soil on
which they tread, and their character Ima from tliis circumstnnce
been marked by n more jcalotia watchfulness of their righta, and
by a more steady spirit of resistance againut ever}- encroachment,
thai) can be found among any other peoplo, whose hahita and pur-
suits are lens homogeneous and independent, less in6ucnccd by
personal clioicc, and more controlled by political circumstaneva.
§ 174. (4) Connected with this state of things, and, indeed,
as a natural consequence Howing from it, is the simplicity of the
system of conveyances, by which the titlca to estates are passed,
and the notoriety of the transfers made. From a ver)- curly period
of their settlement the colonies adopted an almoMt uniform modu
of conveyance of land, at once simple and practicable and aafe.
The differences ant so slight that Uicy became almost evaneaoent.
All lamia were eonvfyed by a deed, commonly in the fonn of a
feolTmcul, or a bargain and sale, or a lease and release, attested
by one or more witnceses, acknowledged or proved before some
court or magistrate, and thnn rcgistcre^l in some public registry.
When so executed, acknowledged, and recorded, it had full effect
to convey tho estate without any Ijvery of seisin, or any other act
or ceremony whatsoever. This mode of conveyance prevailed,
if not in all, in nearly all the colonies from a very early period,
and it baa now become absolutely universal. It is hardly possi-
ble to measure tho beneficial influencea upon our titles arising
from this source, in point of security, facility of transfer, and
marketable value.
§ 175. (5) All the colonies considered tJiemselveti, not as
parcel of the realm of Great Britain, but as dependencies of the
Britisli crown, and owing allegiance thereto^ the king being
their supreme and sovereign lord.' In virtue (A its genera) super-
intcndcncy, the crown conHtantly claimed and esercisMi tho right
of entertaining appeals from the courts of the last resort in the
colonics; and tliese apjiculs wero heard and fimilly adjudged by
the king in council.* This right of appeal was secured by ex-
press reservation in most of the colonial charters. It vras ex-
pressly provided for by an early provincial law in New Hampshire,
■ I VcB. m ! Vughu, R. 304, 400 : Shotrtr, Pari. Ottt, S^ 81, S3; SS i ILm.
Sute Pqxnv ^^■
* I Bbck, CoMm. 131, tti ; CfaUcy on Pnroj. 29, 81.
CU. IVlI.j
GBMBEAL BBVIEW.
127
when the maUer in difference exceeded Qie tra« Talu« or mim of
jCSOO eterliiig. 80, a like colonial law of Kliuilc I^laud wiui en-
acted by its local le^iRlature in 1719.' It wiw treated by the
crown as an inherent right of the subject, independent of any
such re«en*aticin.' And e» in divers cases it was held by the
courtH of EnirUnd. Tho reafiona given for the opinion that tlic
writa of errur liv to all the dominions belonging to England upon
the uUimute judgmenta iiiven there, are, (1) That, othervifle,
the law ap|wint4.-d or pennitted W such inferior dominion might
be considerably ohang^-d without the assent of the superior domin»
ion; (2) Jitdgnient« mi)flit be K>^'<-'ti ^ ^*^ disadvantage or lea-
seuing of tJic superiority, or U> make the superiority of the king
only, and not of tho crown of England ; and, (S) Tliat Uie prac-
tice liaa been accordingly.'
§ 176. Notwithstanding tlic cloarncKs with which this appellate
jurisdiction was an^erted, and iiplicid by the principles of the
common law, the exercise of it watt not genoriilly as.<tiime<l until
about 1680 ; and it was not then conceded ns a matter of right in
all the colonies.* On the contrary, Massachusettn reainted it
under her first charter (tlie right of appeal was exjiresaly re-
served in that of 1691); and Rliode Island and Connecticut at
first denied it, as inconsiBlcnt with, or rather as not provided for,
in thcire.' lUiode Island aoon after surrendered her opposition.*
But Connecticut continued it to a later period.* In a practical
sense, however, the opitellate jurisdiction of Ihc king i« council
was in full and nndisturlwd exercise throuRhout the colonics at
the time of the .\n)erican Revolution; and waa deemed rather a
protection than a grievance.'
> NT* Hunpihin Ptot. Uw«. «dit. 1771, p. T, Act of U WiU. 8, dk i ; Bbodo U>
«nd ton, tAit. 374*. p. 78.
» 1 P. Will. 30 ; Chitty on Prwng. A. S.
■ V>iif[hitD'» Ibp. MO; MS ; Sbov. Pirl. Cua, »0. M. 82, 3S ; 1 V««. 444 ; Sukn'a
Colaa. 9S, sn, ») : S U. Riynt. 1447, 144S ; I Chalm. AtUwU 139. 3M. 871. 078,
«84 1 aifutiu «. OoTYtT. 1 P. Will. U. 8» i Au.-G*a. 9. Stomfl, S Mctml^ B. 1*3,
)H I Bn >. Covlr, S Biwr. 8*4. BSS, SSI. »a : Pibrigw *■ UMtrn, Owp. 1 74 ; 1 Douj.
gDam. »< ; 8 Wilmi'a Worici. S80 : * Oulm. Otda. 177. SO.
* CUilr on Pmofc. ch. 8, pp. S8, la 1 1 CiuOn. Opia. StS : 1 Pltk. Hbt. ISl. 138,
]», 125, la* : 1 CWlia. hatudt, 188, 1(0, STS ; i Mu*. HwL CoIL 189.
' 1 Ctalw. Amnak ST7. S80, 3»7, 804, 411, 44S, 402 ; 3 Dou(. SunM. 174 ; Hntck.
CoIL SSO. lis, M» i 3 HaUh. Uiit. 5S».
* 3 Doug, atmrn. »T ; S tluUh. CoIL 413. 418.
t 3 Dqa«. Su>m. 194 ; 1 Pilk. ftut. 128 to 129.
* I ban tn my pOMtMioo > pristol cm*, Tlwiiwi Fonlqr o- Waiddd CotbI^sw,
128
HISTORY OP TUB COLOKIES.
[BOOK t.
§ 177. (6) Tlioutih the colonics had a common origin, and
owed a common ullc)^auv«, and tlic iiibubitaut« of each were
British KubjeetM, thi-y had no direct political connection with
esch other. Each was independent of alt the others; each, in
a limited sense, was sovereign within Us own territory. There
was neither alliance nor confederacy between them. The assem-
i)1y of one Province could not make laws for annthcr ; nor confer
priviloges, which were to be enjoyed or exercised in another,
fnrther than they could 1>e in any independent foreign state. As
colonies, they were aUo excluded from all connectione with fur-
eign states. They were Icnown only aa dBpend(;nciL'»; and they
followed the fat« of the parent country l>oth in peace and war,
without having assifnifd (« th«m, in the intercourse or diplumacy
of nations, any dititinct or indei»endent existcnw.' Thry did not
poaaess the power of forming any league or treaty among them-
selves which should acquire an obligatory forw- wtlltuut tlio as-
sent of the parent state. And though tltcir mutual wants and
necessities often induced them to aasociato for common purposes
of defence, these eonfcderaeies were of a casual and temporary
nature, and were allowed as an indulgence rather tlian a right.
They made several efforts to procuro the establishment of some
general superintending government over them all; but their own
differences of opinion, as well as the jealousy of the crown, mado
these efforts abortive.' These eiforta, however, prepared tlwir
minds for the gradual reconciliation of their local intere«t8, and
for the gradual development of the principles upon which a union
ought to resiy rather than bronght on aii immeiliate sense of the
necessity or the Itlessings of such a general government
§ 178. But although the colonies were independent of caeh
other in respect to their domestic concerns, they were not wholly
brongkt Matv ttw pmnar ud eoinidl of N*« York rroin the NpRmv nniit of ti
FrvnB'»,bg<i>p(al,imiTit. TlitpratqMMioiiina, wtNOHruinMA/orwritoft
kjr ; uid the Judjp« at Ihe «BptciH oMrt, and the oonnea held, tku n» tiipn]
for Uut «ouM b* t« r*.«xainM hota aettkd by Uw vvnliet of • jot^. The linuUnuit
gOTcrnor ilinriitmt. It «u agmd on aU Mm thU vn ofjitnl in ouuer of Uw i
wajr at writ of trror) Ujr to Ibr king in ooqdcU tram ell }uil«nwnU In the o«lanin ; Imt
not «e to matten «f (wt in Mdl* at roenBon U*. Il n* alea held, that in all ttej
eoloalw the Mbjecte ttny wUh th«m the kn of Sn^ lanJ, ami thrnfon h veO I
vliich took j-Uf after M Uioee wUch wav in foKv beGm Higna Cbarta.
1 1 ChaluL Amiah, SaS, Wt. <M.
* 1 ritk.Hut.llO. 111. US. 143,114,14s, ]««,(» :SR>i;Coll.; I Hank. I
«fa. 1^ p 191 ; 3 Rotch. Oiit 11. 13. St.
CB. XVII.]
OBNSBAL BETIEW.
129
alion to ejich other. On the contrarr, thoy were fuHow-8ubjcct«,
anil for iiiaiiy {Hirposes one people. Every culoiu»t bud a ri);ht
to inhabit, if he pleased, in aiiy oth«r colony; and m a British
Huhjpct be was capalile of inheriting lands by descent in e^i-ry
other colony. The commercial intercourse of the colonies,
too, was reg:ulated by the general laws of the British Bnipirv,
and could not bo restrained or obstructed by colonial legislation.
The remarks of Mr. Chief Justice Jay on this 8Ubj<?ct are equally
just and striking. '^All the people of this country were then
subjects of the king of Great Britain, and owed ulle^iniice to
him; and all the civil authority then existing, or ewrcised
here, flowed from the head of the British Empire Thoy were,
in a strict sense, /^Wow'-subjects, and in a Taricty of respects cm
jKOjtU. When tlie Revobitioit commenced, the patriots did not
assert that only the same aihnity and social connection subsistMt
between the people of the colonies which subtiisted between the
people of Gnul, Britain, and Spain, while Roman provinces, to
vrit, only that af&iity and social connection which result from
the mere circumstance of being goreniccl by the same prino&
Different ideas prevailed, and gave occasion to the Congress o(
1774 and 1775."' («>
t Chisliolm ■>. St>l« of Gtorgii. 3 DilL <TOl
(o) It b plain thU th« wraral Ani«r-
iem StUo mtc novra tally uid in ill re-
9p»cU, M ngudi fath otbrr. indcpeoilcDt
SMm, »» UiU Utm b ipplbd in tbe U«
of natioM. On Ui« coMnty, th* iMrnnl
aadiar UkM piUu to point oat lliil out
|il*»iit (oranmoit I* the nicninor, with
BodUed powtn, of thU wtilcli f>>mii:ily
poMCBfil NBtbotiljr OTvr tlixlil h!1. rnuT
to tlic RiiVDlalion. oprtain poirm of gov.
munnnl mrc rKTciiH oyn nil the cc4-
Mrf«a, vlilttr M p««lainin(c to tb« crown of
Gnat Britain or tbc I^lrliA^lent ! luit tha
rightful extent of thoH poB*r» •ad ham
br [Miwwil t7 the Pullun^nt, and how
hrnaling in thrrrown, wnv thtqimtloM
In i)bpnt« vUcb M l« lb* Berglulkni.
n*t the braw goTwamtat piaMted an*
tfc«rit]i otw tha ■otjcpti of p«f md ww,
and had tlw |t"n*nJ diroctlan of oomaiM-
dal lalweonrM vilh othar natio«a> •>•« of-
tan Ibanulljr conoedcd Vj tha odnniw
TOt. I.— ft
An<) Ihe dlHputcH Iftwrtn thpm ud tba
hom« gorrniiuect nlatni |iKnci|iall)r to
oUin iDBtlsri which thr ooloniiti iiuialcd
trtn within the csdiuivo control oT tlie
Iocs) laginhitami,
7^ t«n(Ivnry amnug thv tulonlila to
tatabliKli a more iutimat* and volBntaijr
union aniong thnnaclwa might fom the
anbjoct of one of thn moat lnlar«attB||[
dkaptn* in Atiir.rivnij liistory. Tha H««
Engtaud OiHifwl«raD]r uf 1B43. the laoifo-
nty Congreai of IttO, thr plan of (Jnloa
^[rMd upon In the Coavrnllun of ITSf,
tb« Hlamp Act CVingms of 170S, and Bii>
aily th* Conltnantal Congrcaa «l 1TTI,
tut* all the offliprlBg of a dnrir* amoajc
Um acMlartd oolamea of Gnat Biitaln m
AnMtka to atiMigtfaen a»d oxl«»d tba oam-
Mwin tlaa t» iMr mulnal «alr«r and inten-
tion. Toall tkiatliciaalooayaf thahoma
goTcraaomt «oaatU«t«d ■ ncrloua imfi-
iment, bat tha dJSca]^ in twnUng as
180
HISTOBT OP THE COLONIES.
[BOOKL
1 179. HaHoK considered some of tLo particulars in wliich the
political orffamiuition aud public rights aud juri<lical policy of
the coloDies «ero noarly similar, it reioaiiu to notice a few in
vbicb tJicrc were iiuportaiit diflterencea.
(1) As to the cotirse of descents and distributioa of intcetate
estates. And here the policy of different ccdouios was in a great
measure determined by the nature of their orijnoHl sovemmcnta
and local positions. All the Southern colonies, including Vir-
ginia, adhered to the course of deaccnta at the common law, as
we have had occanton to »ee, down to the American Revolution.
As a natural con»et|ucnce, real property wait in thuau colonies
generally held in large masBes by the families of ancient proprie-
tom; the yoanper branches were in a great mciwure dc}>L'tidcat
upon the eldest; and the latter asHnmL-d and supported somewhat
of the pre-eminence which belonged to baronial poeseBaiona in
the parent country. Virjfinia was so tenairious of entails, that
she would not even endure the barring of them by the common
means of fines and rocoreries. New York and Xew Jerecy si-
lently adhered to tho Enfflish nilo of des4.'cnts under tht' irovom-
mcDt of the erovi-n, as royal pronnccs. On the other hand, all
•naiig«m«nt u to llw profsr ntMuie of
autboritf to ha Mncodod U any pfopNed
cnnfnlua'T' or oonitratv ma m otaUoU
niUinor*Mdini». TTi« hlttaryof IlieCoo.
v<«tUNicf 1751 b|«Tti<iulari7iiutnietiT«.
ScaXr. Bnnttto|»n Ju«<Mfc,K. A. B«r.,
T«). XX.XV11I. p.7S,<(•^ AtlMtUiit
Mlonin, hy formtl dc«lHUiai, lliraw off
■ll>gi«ne» to dM oivw> t bnt orm ibtv
Atf^A not otMalo hH«»CMMiM« iw>^
tional IhmI, for It vu ilirou^ the t>*o-
luiinnr; ConpvM Uwt iBdeptodenc* wa*
il(d»m^ ukd tfait bod; hnd Blrdady, b;
mwiiwii eoDwiit, taken «pon itatU thoa*
f&mma o( txttiwl cMitral whiek fatfbN
had kec* MDOaM to tiia crawn or tlw
Pw41a»«nt, togtthar a^th snch otlimi ai
111* eminjcmjj Jt«ni«d to tall for. Thocv
]K>wen bmng ondiAm], the CttngitM a«
a national aatfaaritf conU atiawnr a ten-
pMBij parinat oolf. but what vaa doAB
Uienaftar, in MtabbUag tlk* Anletn ot
Conlf^MatUa, aad timi la aabailtiUing
for thiaa ilm work of iht Comaation of
1787, waa not far tlie pwpMe «( ctMlil^
(at tlie fint time a ooonmon anthoritj (m
Statoa bttoia lEhoUjr lnd«p*n<kat of eaeh I
olh«r, but <na dona hj ntj of BodUylait i
dpflaing, alnncthstiiii^ anil im^ttng J
man tftatvt aad ondnring an exiating' -
antbari^, tluoii([h whidi atiHic thoj vera
knnim la tiit hmily of nationn.
"Tbr rninii." It la laid is Iha tnanf^j
nial adilraaa «f IVnaidcnt LiMohi, *■!■
nnoh olOer tlian the Oowtttntkai. It
ma fanntd in (att b; tha Ankle* of la- ,
•odattatt *t I77t. It waa laalBMl uii
Matinnrd by tlia Dectaiallan of lDdrpaail<
(BoaoflTTS. It waa tarAu natuTed, awA ]
tba tOA of all tbo tlian tklitaaa Slataa <
pnaair ptighud and »n(e>i[nl tliat it abaali
ba [Krpitua] by ibc Artkfaa of CsaM-^
(niion in 1778, and fitullr. fai 1787, i
«i lb« defhnd abfarta in ofdaitiiBg aad |
crtabUiUog tho CoMtltntlM nt * loffrm*
Foar a bfW aoeouiit if ibt Oalonkl
OaafadMada^ lk« irailsr ia tar«tnd In
Mr. Toale-t AnalTafa ot Uw CCMUHwlk^.,
pp. Ue, a teg. C
CO. ivtl]
GBNCBil. RETICW.
ISl
Npw Fn^jland, with th« preoption of Rhode Istaml, from a very
early jwriod of their settlpraenta, adopted thfl rule of dividinir
the inheritance equaUy among all the rhitdren, aud other next of
Itiii, fiivinii a double share to the eldest Ron, Maryland, after
1715, and PennsylTatiia almoot from its aettlctncnt, in like man*
ner distrihoted the isberitaoce amonR all the children and other
next of kin. New IlampithiriD, althoii)rh a royal province, stead-
ily clung to the tt^iitcm uf Massachusetts, which slw had received
when she formed an integral part of the latter. But Rhode
Island retained. ii« vc have already seen, its attacltmeiit to the
common-lnw rtilc of descent* down almost to the era of the
American Revolution.'
§ 180. In all the colonies, whi-rc the rule of partible inhcrlt-
inee prcratlcd, estates were soou parcelled out into moderate
plantations and farms; and the jieneral erpiality of pro[iorty in-
Inxlttced hahit« of indtutrr uid economy, the effects of which are
still I'iaihie in t>M>ir local nistomit, institutions, and public pol-
foy. The philosophical mind can ftearcely fail to trace the inti-
mate conneetiott which naturally aubsisls between the ^neral
eqnality of the apportionment of property among the mass of a
nation and the popular fnnn of itfi governmenL The former can
■oarcely fail, first or last, to introduce t)ie aiihatance of a republic
into the aetnal administration of the government, thnuifh ita
forms do not bear such an external impress. Our Revolutionary
statesmen were not insensible to this silent but potent influence;
and tlie fact, that at the present time the law of divisible inhpr-
itnnccs {terrades the Union, is a strong proof of the goncml sense,
not merely of its equity^ but of ita political importance.
§ 181. A very euriotia question was at one time' agitated bo-
fore the kin;^ in council upon an appeal from Connt-eticut, how
far tlie statutes of descenta and distributions, dividing the estate
among all the children, was conformable to the charter uf that
colony, which required the laws to be "not contrary to the laws
of the realm of f^igland." It was »(ion that occasion decided,
that the law of descents, giving the female as well as Uie main
heira a part of the real estate, was repugnant to the charter, and
therefore void. Tlii« determination created great alarm, QOt
only in Connecticut, bat elsewhere ; since it might cut deep into
1 T« ITTO. OM'dBti *. CoUini, 3 PeUn'* Sap, CX B. M.
» la ITW.
132
BISTORT or TBR OObONTKS.
[book I.
tlie legislation ot the other colonies, and disturb the foundation
of maiiy titles. The decree of the council, annulling the law,
was upon the urgent application of some of the colonial agents
revoked, and the taw reinstated with its oblifratory force' At
a fltill later period tho mimo quration svums to h«*-c boon pre-
sented in a somewhat different sbupv for tlie cousitleratiun of tJio
Uw-olTioerfl of the crown; and it may now be gathered an (lie rulv
of voiiHt ruction, that even in a colony, to whicli the benefit of
the lan-8 of England is cxprcsaly extended, the law of descent* of
En^lnnd is not to be deonit-d us necessarily in force there, if it is
iuupplicablc to their situation; or at least, that a choni^o of it
is not beyond the general competency of the colonial legislature.*
§ 182. (2) Connected witli tliis, wo may notice the strong
tendency of the colonies to make lands liable to the payment of
debts. In some of them, indeed, the English rule prevailed of
making lands liable only to an extent upon an elegit But in
by far the greatr-^t number, lands were liable to be set off upon
appraisement, or sold for the payment of debts. And lands
were also apacta, in cas«a of a deficiency of personal property, to
be applied in tho course of administration to dis^rhargo the debts
of the party deceased. This wan a natural result of the condi-
tion of the people in a new country, who poeaesaed little moneyed
capital, whose wanta were numerous, and whose desire of credit
was correspondcntly great The true policy in such a state of
things was to make land, in some degree, a substitute for money,
by giving it all the facilities of transfer, and all the prompt ap-
plirability of pcnonul property. It will be found that the growth
of the respective colonies was in no small degree affected by
this circumslanco. Complaints were made, and perhufM justly,
that undue priorities in payment of debts were given to the in-
habitants of tho colony over all other ere<ditoni; and that occa-
sional oWtnictions were thrown in the way of collecting dcbta.'
But the evil was not general in its operation; and the policy,
wherever it was puntued, retarded the growth and stinted the
means of the settlements. For the purpose, however, of giving
greater secmrity to creditors, as well as for a more easy rer^very
of dobt« due in the plantations and colonies in America, tho
> 1 Pitic BuL la. I3«.
* AtL-Gn. «. Stoaut. S Ucriv. B. 113. 1S7, US. IW.
■ 1 Ouim. Amuh, «K, 999.
CH. xrii.]
GENKRAL REVIEW.
188
statute of 5 Geo. 2, ch. 7 (1782), among other things declared,
that all housea, landx, negroea, and other hereditaments and real
estates in the ptanlationt) ithoald be liable to, and chai^^^blc
with, the dcbta of the proprietor, and be aniteta for the eatisfac*
tiuu thereof, in like miuuier as real eatates are by the law of Eng-
land liable to the sutisfaction of debta due by Imnd or otlier
Specialty, and shall be subject to like remedies in courta of law
and equity, fur seixinji, cxtcndinf;, selling, and disposing of the
Samo^ toward satisfaction of such debts, in like manner as per-
sonal c«tates lu any of such plantations are seized, extended,
sold, or disposed of, for satisfaction of debts. Ttiis act dues not
aeem to have been resisted on the part of any of the colonics to
whom it peculiarly applied.'
§ 183. In respect to the political relations of the colonies with
the parent country-, it ta not easy to atate the exact limits of the
dependency which was admitted, and the extent of sovereignty
which might be lawfully cserciaed orer thcra, either by the
crown or by Parliament In regard to the crown, all of the col-
oniea admitted that they owed allegiance to the king, as Iheir
Boverpign liege lord, though the nature of the powcni which he
might exercise, as sovereign, were atiU undefined.'
§ 184. In th<> ailenee of express declarations we may resort to
the doctrines maintained by the croum-writers, aa fnmiabing if
not an exact, at least a comprehensive view of the claims of the
fxiyal prerogative over the colonial establiiihments. They consid-
ered it not necessary to maintain that all the royal prerogatives
exercisable in England were of course exercisable in the colonics,
bat only such fundamental rights and principles as constituted
the basis of tho throne aud its authority, and without which the
king would cease to bo sovereign In all his dominions. Henoo
the attributes of sovereignty, perfection, perptuity, and irrespon-
sibility which were inherent in the political capacity of the king,
belonged to him in all the territories subject to the crown, what'-
ever was the nature of their laws an<) government in other re-
spects. Everywhere he waa the head of the Church and the
foantain of justice; everywhere he was entitled to a share in tho
legislatjon (except where he had expressly renounced it) ; every-
where he was generalissimo of all forces, and entitled to make
1 TeUair r. 6Um\, 3 Cnncb, 447.
■ IbalwU'iCoka. tt. 18, r- SU 1 3 WUmh'* W*rk«, 234. 237, S38, ill . SIS. SIS.
184
HISTOBT OP THE O0I/>NtES.
[book I.
peace or war. But minor prerogatives might be yielded, where
they were inoonaifitetit with the lawa or uu^^ of the place, or
were inapplicable to the condition of the people. In crerj- ques-
tion that respected the royal prcrugutivvH in tbi' culouies, vrborc
they were not of a strictly fundtimeutal nature, the firat thing to
lie considcn-d who. whi-thcr tlit! chartvr of the purlicular colony
coataiuod uuy vxprc-iu pruviHiun un the subject U it did, that
was the guide. If it was silent, then tJic royal prerogatives were
in the colony preci»ply the name as in the parent e^>untrv; for
in sndl cases the common law of England was the common lav
of the colonics for such puri)a8eB. Hence, if the colooial charter
contained no i)C<:uliar grant to the contrary, the king might erect
courts of justice and exchequer therein; and the colonial judica^
torics, in point of law, were doemod to emanate from the crown,
under the modifications made by the colonial asaemblira under
their charters. The kin^ sUu mi^lit extend the privilege of
sending representatires to new towns in the eolunial usBemblios.
lie might control, and enter a nollf protequi in criminal prose-
cuLions, and pardon crimes, and release forfeitures. He migfafc
pnMcnt to vacant bcncfiocs; aud lie was entitled to royal moneyi
trcasurc-trorc, csdieats, and forfeitures. No colonial assem-
blies liad a right to enact laws, except with the as84>nt of
crown by charter, or commission, or oUicrwise; and if they
occdcd the authority pre»tcrilied by the crown, their acts wore
void. The king might alter the constitution and form of the gov-
ernment of the colony, where there was no charter or other cou-
fmnatory act by the colonial aaaembly, with the assent of Uio
crown ; and it rented merely on the instmctionB and eoounissions
given, from time to time, by tJic crown to its governors. The
king had jiower also to vest in the royal governors in the coIo<
ales, from time to time, such of his pruroi;ativ4.>s as be should
please ; such ua the power tu prorogue, adjourn, aud dissolve the
colonial assemblies ; to confirm acts and laws, to pardon offences,
to act as captain- gene nil of the public forci-s, lu ap)>uint public
officers, to act as chaucullor and supreme ordinary, to sit in the
highest court of appeals and errors, to exercise the duties of rice-
admiral, and to grant commissions to privateers. Tbcso last,
and some other of the prerogatives ot the king, were eommODly
exercised by the royal governors without objection.
$ 18% The colonial assembUes wore not ccmaidered as stand-
gfa£—
CB. XIII.]
GEKBBAL BETtEW.
186
ini; on tbc Mine footing as Parliainmt in respect to rights, pow<
on, uid pririlugcs; but as dcrinng all their cuergios from the
crown, snd limited by the respective charter*, or other con6rma-
tory tict« ol the cronii, ta all their prococdingB. The king mtf^it,
in respect to a colonial assembly, saseQt to an act of usKcmbly
before it met, or ratify it, or dissent from it, after the seiision
waa closed. Ho might accept a surrcndor of a colonial charter,
subject to the rights of third persona previooaly acquired, and
give the colony a new charter or othenriso institute therein a
new form nf government And it has been even contended that
the king might, in cases of extraordinary necessity or emergency,
take away a charter, where the defence or protection of the inhab*
itants required it^ leaving them in posscssitni of their ciril righta.
§ 1S6. Such are some of the royal prerogatives which were
sapposed U> exist by Hbe crown-n-riters in the colonial establish-
ments, when nut rcKtr^nod by any )]oiiiti\'C charter or bill of
rights. Of thvse, many were uudisi>iit4.-d; but otbem wore re-
sisted witli pcrlinucily and effect in the colonial assemblies.'
§ 187. In rt-gard to the authority of Parliament to enact laws
which sliould be binding uj>on them, there was quite as much
(rtMCurity and still more jealousy spreading over the whole sub-
ject.' The government of Qreat Hritain always niaintuined the
doctrine that thfi Parliament had authority to bind the culuuice
in all coses whatsoerer.* No acts of Parliament, however, were
undcretood to bind tiie colonies, unless exprfwaly namn) thor^iu.*
But in America, at different time« and in different colonies,
different opinions were entertained on the subject.* In fact, it
seemed to l>e the policy of the coloniefl as much as possible to
withdraw them»elTc«from any acknowledgment of such authority,
except so far as tlietr necessities, from time to time, compoUed
> Tb* nader oiU And the tntgeet af th« roj^ prerog&tit* in tho coIowm diwwMrj *t
lugaiaCkitlTm lh« PrwotptiTH of tbe Cnrao, eh. 3, pp. lata W) inSUhMMillu
CaaMiwUon of tha C^olonltM, pattim ; In Chnlmen'i AhmIi at lb« Calonia; and in
Cbatnen'* OpiBioM, t Tofa. fiamim. Sw >!» Omi. IHr. PlttoiptlT*.
t 1 piik. Rbt. Kl to m. laa. Ite. IM, DDO to SOS : A|ip. M. Ko. 0 : U. 493.
tit : S Wil»D'i Woriii. MS. 338. 3I<\ 3(1. Hi, SiS ; ) WU»n'i Worb, «1. BS, S8 ;
UiM, SUlo r^pm. ass. U>. Si4. »a ta Kt ; l Ktk. Uirt. SflS.
* 3 Wilam'i Work*. (OS ; I Cbdni. .lauli. 1 M. ««7, WO ; SMhw't COen. U9.
* 1 BlMk. Cmm. 107, 10« : Chitty oo PnroK. i*.
* 1 Ktk. Ulrt. IM, IM. 300 to S05,t0«, tM ; Manhall'i Colon, ah. It, p. «M ; 1
Cbittjgal>n>«K.a»i 1 OwlnHn'* OpinioM^ IM totU; 1 Pidc Hut. ok. «. p. tOS
toSI2
186
HISTORT OF THR COLOMEa.
[■OOKI.
tbera 1o acquiotwc in the parliamt'atury moaflurcs expreiwljr cx-
teodin); to Uicm. Wo have alrciuly He-en that tiivy resiiitcd the
impoditiun of tuxes upon thoui without the couiuint of thuir local
Icgiiiluturi'A, from a very cnrl}' period.'
$ 186. But it WW hy no meaii8 an unccnnmon opinion in some
of the colonics, especially in the proprietArv and eluirter Rorcni-
mcnt«, that no act of Parliament whataoevcr cwild bind them
without their own consent.' Aa extreme reluctA»c« vnn iihowa
bj MassachiLtPtts to aur purlianientary interference a» early u
1640;* and the famous Navigation Acta of 1U61 and ]($60 were
perpetually eroded, even when their authority woa no longer de-
nted, throughout the whole of Xcv England.* UawiadiuiicttM, in
1679, in an addreBa to the crown, declared that she "apprehended
them to be an invafiion of the rights, libertica, and propertioa of
the nubjects of hia Majesty in the colony, they not beinji: repre-
senlod in Parliament; and aecording to the usual sayings of the
learned in the law, the luw« of England weru bounded within
the four Heaa, and did not reach America. " " However, Masso-
chuwttto, OK well aa the otJior New England coloni(^>)<i, finally ac-
quicaoed in the authority of Parliament to n.'^ilHtc tnido and
commerce, but denied It in regard to taxation and internal reg-
ulation of (he colonies.* Aa late aa 17r>7 the Geucral Court of
HaMftchusetta admitted the constitutional authority of Parlia-
ment in the following words: "The authority of all acta of Par-
liament, which concern fbe colonies and extend to them, is ever
ackuonk-dged in all the courts of law, and made the rule of all
judicial proceedings in the Province. There is not a lucmher of
the Oeneral Court, and we know no inhabitant within the bounds
of the gov'cniment, tliat ever questioned tliis authority."' And
in another addreaa in 1761, they declared that "every not wo
make, repugnant to an act td Parliament extending to tlte plan-
1 U«nh«iri Colon, ck. It, p^ US ) t PiA. Hirt. BV.M, *«., U ; l<L IM, ITt, 17«,
183 to tlS t Uum. SttU Pipna, US to S<4.
* 1 Pitfc. HiM. 91 ; 1 Chalm. Atattlt, I4S.
■ S WUUiNp'* Jour. ItS.
* I Oubn. Anub, S77. 380, 407, 440. 413, 448. tSS. MD^ 483; «*Si ««8 ; nnlek.
CoD. 498; Um«. »tat« PHprnflSlS). iDtnduetioa ; Id. SO; 3 Wibcm'* We«ki^ 83.
* 1 Clialm. Aaa. 407 ; 1 nutoh. Hut. X3S ; 3 WJban's Work*. Ct, 88.
« 1 ritk. [list 9S. 98. ISI to S12. I8S. 4TS, 476; 1 CUIm. AknI*, 4&1 480 ; I
Hutcb. Hi«t. SSS ; t nattk. R1>L 33, 34 ; DunoMt'a EMmo*. 1 Anxtkau TncI*. $1 ;
Burks'* Spefch on TuutM la 1774, and on Ctmailitiien ia t77S>.
) 8 Uvtcli. HiO. Wj Hm. StMe I^pon, 397.
CH. xvn.]
OENEBAL BEVIKW.
187
tationa, is ip9« facto null and void."' And At a lutcr period, in
1768, in a circulur address to tbo other colonicK, they admitted
"that his Majeaty's high cotirt of Parliament is th« supn-mc le-
jrislativo power over the whole empire;" contending, however,
that as British subjectA they could not he taxed witliout their
Swn consent.'
j 189. "In the Middle and Soathem prortnc«a," we arc in-
formed hy a most respectable historian,' "no question respect-
ing the supremacy of Parliament in matters of frencral legialation
exiated. The authority of such acta of internal regulation as
verc made for America, aa well aa thoae for the regulation <^
commerce, even by the imposition of duties, provided lho»e duties
-were imposed for the purpose of regulation, had beon at all tin>ca
admitted. But thews colonies, however they might acknowledge
the supremacy of Purliameot in other rvs|iectB, denied tltc right
of that body to tax them internally. " If tlicrc were any e.\(!«p-
tion3 to the gent-'tnl ueeuraey of thla statement, they Mcem to havo
bc<eu too few and fugitive to impair the general rcsulL' In the
t.charter of Pennsylvania, an express r«ser\'ation was made of the
F:powcr of taxation by an act of Parliament, though this was ar*
gued not to bo a suflieicnt foundation for the excrciite of it*
§ 190. Porhapfl tlic best general sunnnnn,' of the riffhts and
liberties asserted by all the colonies is eontuined in the cele-
brated declaration drawn up by the Congress of the Nine Colo-
nies assembled at New York, in October, 17tJ6.* That declaration
asserted tJiat the colonists ** owe the same allegiance to the crown
of Great Britain that is owing from hia aubjecta bom within the
realm, ajid all due sulxirdi nation to that august l>ody, the Parlia-
r^Blfintof Great Britain." That the ooloniata "are entitled to all
1 % Hukh. RM. K i Ajigw MS ; Hanhall'* Colon. Hol S, ^ 173.
• llinhalI'vCMoii.rli. 13.P.371; A|-i>.Ko.S,pp-47S.471;l hlk. HUt 18«; App.
' ' 448, iSO, at, 4M. ThU ww tliB pwtA aMtilud in Mr. S. Utts'i otlrbntad t"^ptiUt
on tlMlU^Uaof IheCblaoiMt 1 Anwricm Tmeta {WOfl], 48. CS, H. H. M. S>. n,
,B9 ; uhI ■!» in DnUnj'i CoridawtJoiH on Tutng the GolonMo, 1 Anwr. Tneli^ 14,
i 18. M. 52. Si* »Im> I itiloMMt'M Cams|i. S, 7, I'i.
• UarriwtriiCaliHi. ch.13,p.U4. Sn alw 1 Pitk. Hiat. in t«SlS,U5,S7&, tTA;
I JrfTmon'* CociMp' 4. 7, 1M : liL 117.
• 1 Pitk. Hirt. n. M, 98, lU (o IlSj App. Vo. 4. 4(8. ISO, 418.
• I Cludinen'* Anaali, Ctt, CSS : 3 Anrriom TncU, Ki^Ku of Putin. Tiad. IS, IB ;
S Antr. Tntt^ Apfi. SI ; Id. Fnaklio'i Ex»m. 4C.
• Th» nina SutM wtn MMwcbiuelU. Rhoda lilnd. CorawttMil, X«» Ycofe; HtW
lm»y, pMiiMylvanb, IMtwnn, UmjUdiI, muI BoaVa CuoUna.
188
amORT OF TUB COLON1B9.
{kedKL
tJic inherent ri^ts tnd liberties of his [the king's] natitral-bon)
cubjecU within the kingdom of Great Britain." "That it U ia-
•opaml)!}' eiuentinl to the freedom of a people, am] the undoubted
right of Hu^liahmen, that no taxes be imposed on them, bat with
their own consent, given pemonailr, or by tlioir repnacntotivoo! "
That the jtcoplu of the " oolonit-s are not, and from their local
ciretunDUmees cannot b«, repreitentcd in the House of Commons
of Great Britain. That the only rcprcBentatircM of these oolonies
Are persons chosen tlicrcin by thcmselTca ; otid that no tax ever
has been, or can be, constitutionally imposed ii)>on thetu, but
by their res]>ective legislatures. That all Bii{>j>lics of the crown
l>eing free gifts from the people, it is unreasoimble and inconsist-
ent with the principles and spirit of the IlritiAh Unn»titutioD for
tlic people of Great Britain to grant to his Majesty tlio property
of the colonies. And that the trial by jury is the inherent and
invahiable right of ev-ery British subject in tlicsc colonies." '
{ ItU. We here obserre that the 8U[>(>rinteniiing authority of
Parliament is admitted in general terms; and that absolute inde-
pendence of it is not ercn suggeiited, although in eiibseijuent
clauses certain griGvancca, by the Htauip Act, and by certain
acta levying duties and reatraining trade in the colnniea, are dis-
approved of in viTv strong language.* In the report of the com-
mittee of Uie fiitme body, on the aobjcct of colonial rights, drawn
Qp with great ability, it was stated: "It is acknowledged that
the ParliunR-nt. collectively eonsidcn-d, as conBioling of king,
lords, and eommons, are the naprfme: legidiUvre of the whole em-
pire; and, <u «H<;A, have an undovUed jurttdittion over the wAoIs
ttAmttttt »9 far a» it wmitUnt vUh ovr r«»rntial riijhu, of which
Also tboy are and must be Uie final judgvs ; and even the appli-
cations and i>etiti»us to tlie king and Parliament, to implore
relief in our present difliciilties, will be an ample recogni-
tion of our subjection to, and dependence u)>on, the l^slature."*
And they contended that there ia a vaat difference between
the exercine of parliamentary jurisdiction in general acts for
the amendment of the common hiw, or e^'cn in general r^u-
lations of trade and commerce through the empire, and the act'
ual exercise of that jurisdiction in levying external and Internal
> Hanli. niM. CokaiM. eh. 13, pp. SSO, tTO. UI : 1 fitk. Ubt. ITS, 119, 180, M«.
■ lUnk. Hbt. Coba. p. 471, Mta t.
• rUk. QIM. 4IS, iM.
CH. XTII.]
GESLail. EWriEV.
189
dutira and tuxm on the colooiste, while they neither are, nor can
be, represented in Parliament' And in the petition of the eame
body to tho Hoiuo .of Commuiu, thvro iit the following declara-
tion : " We must sincerely recoguixc our aUcfniu><^ to the crown,
and acktiuwledf^ all due aul>ordi nation to th« Purliamont of Great
Britain, and shall always retain tlkc luoat grateful senao of tlwir
DMiatance and protection."* Hut it is added, there Is "a mate-
rial distinction in reasDn and sound policy between tlic necessary
exercise of parliamentary jurisdiction in gtntral att* for the
amendment of the eommtnt iow, and tie r^uiation of tradt and
eommtret throu-jh th-. whrUe empirt, and the exercise of that juris-
diction by imposing taxea on the colonies;*" thus admitting the
former to bo rightful, while denying tlie latter.*
§ l»i But after the paasage of the .-itanip Act, in 176S, many
of the colonies began to examine this subject vilh more care,
and to entertain very different opinions as to i>arliamentary au-
thority. The doctrines maintained in debate in Parliumeut, as
well aa the alarming extent to which a practical application of
thoae doctrines might lead, in drying up tlic reauurcca and proe-
tratiug tho strcniith and prosperity o( th« eoloniea, drove them
to a more close and narrow survey of the foundation of parliamen-
tary' supremcy. Doubts were soon infused into their minds, and
from di)ul)ts they paased by an easy transition to a denial, Gratf of
tlie power of taxation, and next, of all authority whatever to
bind them by ita laws.* One of the mo«t diatingui sited of our
writers^ during the contest admits tliat he entered upon the in-
quiry "with a view and expectation of being able to trace some
OOOStitutioiial line between those cases in which we ought and
those In which we ought not to acknowledge tho power of Parlia-
mcut over us. In the prosecution of liis ini)uiries, he became
fully convinced that such a line does not exist; and that there
can l>o no medium between acknowledging and denying that
power in all cases."
§ 19S. If other colonies did not immediately arrive at the same
> 1 rilk. Bi>L 453, ^H. ■ « AiMT. lIuMmn, •».
■ 4 \ma. Uuatnni, 8», SO.
* The oelibnUd JecbntlDa of tb* righta of tlw wkale*, by Congrto, in 1*74
(bcmftcr cited), coMUlaaanuiiiiuryiiot ttwutitlly ditfew t. 1 Jonnt. of Congrao,
Site SI.
* 1 J«SwMa' C«n«|>. 0, 7. 12, 104 io 1141
* S WUmo'* Woriu, tot i Ham, SUto raprn, S3», tW.
140
HISTOHY OP THE COUtHOB.
[book I.
concluaioD, it was easjr to foresee that the Btniggle woald ulti-
mately be maintained upon the general ground; and that a
common intoreat and a common desire of nx-uril}-, if not of in-
depcntlcnce, would gradually bring all tJio coloniva to f<.'«l the
absolute nocesaity of adhering to it, bb their truest and mdesi
defence.' In 1778, Maiuachusetta found no dilViculty in cuntend-
ing in the broadest terma for an uuliintted independence of Par*
liamont; and in & bold and decided tone denied all it« power of
legislation over tht-m, A distinction was taken betvccii subjco
tion U> Parliament, and allogiunct- to the croTiu The latter WM
admitted; but the former wu res4>Iutcly oppoecd.' It is remark^
able that the Deelaration M Independence, which acts forth our
grievances in Bucfa warm and glowing colors, docs not once raen>
tion Parliament, or allude to our counoction wiUi it; but treats
the acts of oppression therein referred to as acts (A the king, in
cnniliinatinn " with Others," for tlie overthrow of our liberties.*
§ 11*4. The eolonies generally did not, however, at this period
concur in thcMj doctrines of Massachusetts, and some diRicultics
antsD among them in (ho discussions on this subject Even in
the Dwrlaration of Rights* (a) drawn up by the continental con-
gress in 1774, and ))rRsented to the world as their deliberat« opin-
ion of colonial privileges, while it was asserted tliat they were
entitled to a free and exclusive power of legislation in their pro*
Tincial legislature, in all cases of taxation and internal policy,
they admitted, from the necenaity of the case, and a regard to the
mutual interests of both countries, that Parliament might pnss
laws bona fide for the regulation of external commerce, though
not to raise a revenue, for the purpose of securing the c(Hnmcr-
cial advantages of the wholo empire to the mother country, and
tbu commercial boacfits of its rvspective members.' An att«r
< 1 WflMs'i Worita, SSI. SSA, SM, IST, 2», 397, S» ; 9 WiliuB'tWotfa, £1, U, &S
to tH: 1 fitk. Hilt. Its, 243, StO. iW, 349. SSO i MaM. SlmU Pui^-n, SSI. 333, 137,
Sa», 8l2ti>sai,S5au>3«t; 4 DvbnU'* P«L l)«b>la^U1, &r., wAn; UitA. HbL
tk 14, pp. 411. 4S» ; I Jatb-Tvma Cormp. S, 7. IS. lOOb IM to \Xt.
> M«». Sun t^ftn. «<Ut. 181S. pp. S42 to 310. SU to «M ; 1 Pttk. HhU SCO, SSI,
43X454.
■ 1 JtffM««M'« Oomap. «, 7. IS. lWloll«.
* 1 Ftik. HUl ns. 3M, S40, S(4 ; Jonra. of CoaSRH, 1774, H). ». » ; Hank
,CMca. oh. 14. p|i. 41!, 4S3.
* A* thk dooiUMDt it vnj LupMtant, uxl not mm\y round, iht motoriil claiww will
(d) Bottk'a Anwilaui War, ti. 4.
CB. xvn.]
(tENEKAL REVIKW.
141
denial of nil pnrliamentarf authority wan not generally main*
taiuoci until after independence vm in the full contemplation of
most of the coluniL-8.
b« hwt eitrtcUil. AlW recitis]; DMnj^ mU ot grierknof, the DroUntion procMds gi
foUoirt: —
" Tb« good poople of the uvenl colonic of Kr« HkRipiUn^ MimmIiiimiu Bay,
Khodc IiUnil and tVoriiUnce PlanUtloni, OMUia^tlcnl, Kvw York, Nvw Jtrmj, Pnitt-
■jrlTUii*, N'ewtastW, Kent imd Suawx on DeUwuv, UtrjUnA. Virj^iiiU, Kortli Cn«>
Una, and Sontli C*roIiu>, justly lUriDPiI at Ihnc nibitnrx proomdingK of pKrlunwnt
nnd ndminwtntion, barn KVpnlly olocti^, conititutel. nnd 4fipolnttd dcpnliM to niMt
I nad ih In (tntral taapt^ In the titj o( riuladelfihk. In oidtf t» obtain mch mUV
• Uahmcnt, •« thftt Uttit n>tiglon. lam, anrl lilwHira luay not bi lubrtrtcd : Wlimupan
llMdcputini nappoinlHl bviiig □avnawmblt'd, in n Tull and ft«e RpnaeMttua of thoo
, csloniu, Ukiiig into li»ir moat KTioua consideration tha b«tt DtHD* of tttaininn Uia
Mtda aTorcMiil, do Ln tbc lint plifr. u Bnglialimcn, tlidr amwatDn, In like catca kive
Uully ilunn. for acwrtins ami rlndirating th'^tr ritthu and libtrtiMv declare,
"Tliat Iho iii}iabiUiita of tbo EiigliHh Ruliinir« iii North Auiario^ by the uumaUUo
kvi of natan, thn princijiln of the KiigUah couoUtution, and tha tmnl ohattora of
compncti, hare the following biuutd.
*• flMoltad, N. a D. 1. Thatth^am entitled tollfo, librrty, and propniy i and
auj hate n«var <«dad to uij tonralgn power « hatvrvr a tight to dispow at either
nithont thrir conatBL
" BMOind, N. C D. 1. That ooi anceiton who firat aettlcd thcae colonUa *im, at
Ito tfana«f thHrcaDlgration ftom the mother coutitrf, entltM to all tha rights Ilb«rtE«s.
' nd linimniitiei et tree and natntal-boni vul^'wta witldn the nalm of Englaiid.
"BcMlvcd, H. C 1>. 8. That by inch Mnigralion tlicy by no niaani lirfalted, anr-
rmdand, or lo«t any of IhoM rtghta, but thai thoy «•r^ and Uiiii dmcendaata now
mn, «atiiltil lo tbe aMtda* and enjoyment nf all aucb of tbian m their local and Mitr
cuonmntanoea eoabU than to vzMviia and enjoy.
" lUtoInd, t, ThAt the toundalion of Eiiglisb liberty and of all free goremmont U
■ right in tha paopio to twttcipal* is thHr legi^latini toandl ; and ai th* EnsHth
Mlonbta as* not repraaeotad, and from tbclr local and otiiar clrcnmUancw can«ot
': fMfMtty be repniM«l«d tn tb* Britlah Parliament, they are enlitlwd to a fiae and «[•
olndT* paver of ItgUataon Ln their Mveial pMTioetel legialalufM, tihtn thelf right o(
', itpcMMtation 0*11 tkne be ptoNcred, in all eaM* of taaatinn and Mcnia) ptity, Mb-
' Jaet anly to tbe ntpilTa of tMr aowwign bi mch mamtr at bu bean hantefm OMd
and aetMlomad. Bnt frmn tW naoaarity of tbe <ur, and ■ rtgud to tbe mutnal !»•
' tenata of both oonntriM, we ohMrfally «omant to the oiwraiion of a«ch acta of the
' BritUi Parliaatat *a are Imui Jtdt tatttninad (e llie ragnhlSan of our aUsmal «oH<
! ■(fe*v for tbe tmrpaar of •ecnriaig tbe OMnHMnU adfaatage* of the wbele mtfin to
I tbt MMbOT coimtiy, and tha eonunardal bmiafila of ita rrapeetlva nesben ; amlsdlng
•Mty id«a ef taxation, inlamal «r axtemal, Ibr laUng a Mrame on the anlileeia fai
AawHcB «ithe«t their oona'nt.
>* RaeolTHl. H. C. V. fi. That tbe nspectineoloidea anaotitlnl tothaeoinmantav
of Ea^md, and man eapeeially to tbe gient and lawlimaMe privikga of beli^ tiled
I17 tb^r pr«n of tbe fkin^p^ aoeording lo tbe coon* of tbat la*.
"Reaalvad, 0. Tbat tbey are entltlml lo tha benett of aneb of tbe E^Uah ataiotaa
ta asJUed at tbe time of their mIomImUob ; and wUch they hvn. by axpnfanoe^ t»-
' ipeotiTely Ibnsd t« be appUoahla to tbtir aertral local and otbci drenawtnioea.
14S
niSTORT OF THE COLONIES.
[dock 1.
§ 195. The principal gronnds on which PnrUament DMcrtcd
the ri^htto make laws to bind the colonien in all ca«eft whatso-
lever were, that tlic colonies were originally estahliahed under
charters from the crowii ; that the territories were dejiendencies
of the ri-alm, and the crown coiild not by its gt^ts exempt them
from the Huprcmc legislative power of Parliurnvnt, which extended
wherever tJie sovereignty of the crown extended ; that the colo-
nist* iu tlicir new scttlementa owed the same subjection and al-
legiance to the supreme power, aa if they resided in England,
and that the crown had no authority to enter into any compact
to jtnpair it; that the legislative power over tlic colonies is sn-
preme and sovereign; that the supreme power must be entire
and complete in taxation as well as in legislation; that there is
no difference betwet-n a grant of dntiea on merchandise, and a
grant of taxes and subsidies ; that there is no difference between
external and internal taxes, and, though different in name, they
are in effect the same; tliat taxation is a part of the 8o\-«reign
power, and that it may bo rightfully exercised owt those who arO
not represented. '
■BMolT-d, N. C. D.r. 'nMa«M,UalbitM(j'*«il«alM,valil[<«t*eanUU«llo
I tb« Imnwritt** ami jiciviltiBM granM and ouuftiiunl to Oitmi by tcjiI ehaUn, or
MCorad by Ifacir nevntwX <«dM «f ftorindal l*m.
" BMoInd, N. C. D. S. Tbftt liunf ban a rinftt (momUt to MMiMbto, oonridar oT
tlieirgiicvMMi^kiid peUtloo ihaldng-, uxlUintkll praMcutioiu, pruhiUtorjr iirotluiu-
tiom^ uid Mramitmentii of th« «uiu^ an illcpL
■ BoMlnd, K. C. D. D. TW Uie kMping • •tamUag may ia Umm Mkntai, la
'Vmmtl pMca^ wiihant lh« conaent of tlw ItKUautn ttf tbat odmr fai whkk ntk
maj h litpt, li igitiiiiit Uw.
" BoMlved, El*. C. D. 10. It u iiKUqi««i)ably ncwuary to good gorcroaieat. anit
Nudcral wwntkl by tha EogtUb CoMtitatkoi, Uiat tbe oooititninit bnuioliaa of Uio
> l«|i*]atnnt bo JBdepcDdoDt of Mch «UiBr ; Hut, litftM*, lb* autKbt of iefUatlT*
IfOKvr bi wvcnl ttAenint. by a eoBBdl appoIalMl during pleaiuw iff tibe nown, h
UMonatiWtional. daagttoni, aad derttwlivo to the bM4am of Amotima WgUbitiatL
"AlludMcliof wUeh ifaa abnMid dejmtiei^ la behalf of IhamwlTn and tMr
coMtlUMKta, do elaia, dauaad, aad faabt OB, ■• tb«ir ludsUtabl* rigku «i<l libtttica^
wUd> oaniMt bo Iqpiny takm fran tbMK. altond, or atrndgxl hy anjr lower what-
tnr, vtlhout thair ow« cMueot, bj their nrptOMitMitsi bi tlidr mrml prorindal
TbeplaaofooBCiUationpiopaaedbjrtlH ftMinclalfonvrMtuMor X«w York u 1779
nplkitljr admiU "that boH thenaooailjaf th««aMOnat Hritaia dioa]diT|r°l>tE th«
|1»do of lb* Kholo tmfin tat lbs gi-n«nl tvnelit o( Ibc wlKiln, bat no* for Iba H^ante
' boii«nt or ativ jttTttcnkr [wtl." 1 Ktk. Uiil. ob. 9. p. S«4.
1 1 nik. Hial. IM. 901. m SM, sot, M(t aOS. 300. tG7 ; Haw. 8tM« Vfm. 388.
WD ; 1 Chalm. AI■Bab^ IB, « ; 2 Vfbun'i Uw LacL M to 41 i Chitt; en Ptong. cb.
8 i 1 Chain. Opia. IM to S2C
CH. XVI!,]
GESEft^L KSTrKV.
148
§ 196. The grounds on which the oolonieg resisted the n^t
o£ taxution by rarHament wore, as we have seen, that they were
not represented i** Parliament; that they were entitled to all the
privileges and immunities of Bntitih subjects; that the Utter
could not l>e tnxed but by their own rci)re»entative8 ; that repre-
sentatjnn and taxation were inneparably connected; that the
principles of taxation were essentially distinct from those of le>
gislation ; that there ia a wide difference between the power of
internal and external taxation ; that the colonies had always en-
joyed the solo rigtit of imposing taxes upon themselves ; and that
it was essential to their freedom.'
§ 197. The Stamp Act was repealed ; hut within a few years
afterwards duties uf another sort were laid, the object of which
vaa to raise a rcrcnuc from importations into the volonics.
These of course became as offensive to the colonies us the prlcn*
attempt at internal taxation, and were resisted upon the same
groonds of uneonRtitutionuUty,^{a) It soon became obvious that
the great struggle in respect to colonial and parliamcntury rights
could Hcareely be decided otherwise than by an appeal to arms-
Great Britain was resolutely bent upon enforcing her claims by
an open exercise of military power; and, on the other hand,
America scarcely saw any other choice left to her but uncoodi-
Uoaal submission or bold and unmeasured resistance. ^
1 1 rttk. niM. 199. 100,30I,SOS,90»,»t.S19,lS«ta38S.Sn. 4(S,«'l«.t4T,-148.
4S3, 4U, iM, m : Mat*. SMtc Vtpn*. Ui, US, SM to WI ; 4 Dsbiett'* PuL !>«-
bam, SSI. Mt«. fco. : S WOwn'ii Uv LeoL 64 ta «L
* 1 Pitk. Hut. Sir, 319, kt.
(a) BotU'a Amcricau Wu, b. S.
B
HISTORY OF THE REVOLUTION AND OF THE
CONFEDERATION.
CHAPTER L
THE REVOLUnON.
§ 198. We have now completed cmr survey of tho origin and
political history of tho American colonics up to th« p«rio<] of the
Revolution. Wo have examined the mom importunt coincidences
and difFercnceii in their furms of government, in lh«ir laws, and
in thoir political iuMtitutiunn. Wo have presented a general out*
line of their actual relations with th« parent country; of the
rights which they claimed; of the dependence which they ad-
mitted ', and of the controvereies which existed at this period, in
respect to sovereign powere and prerogatives on one side, and
colonial rights and lil>crties on the otJier.
§ 199. Wo are next to proceed to an historical review of the
origin of that nnion of tho colonics which led to tho I>oclaration
of Independence; of the effects of that event, and of the subso-
quent war upon tho political character and rights of the colo-
nies; of the formation and adoption of the Articles of Confed-
eration; of the sovereign powers antecedently exercised by tho
continental Congress; of the powers delegated by the confedera-
tion to the general government; of the causes of tho decline and
fall o( the confedcratiuu; and finally of the establishment of tho
present Constitution of tho United States. Having disposed of
these interestins; and important topics, wo shall then Ix- prepared
to enter upon tlie examination of the details of thut Constitution,
which has justly been de«me<I one of the most prufomid efforts of
human wisdom, ond which, it is believed, will awaken our ad-
miration and warm our affections more and more, as its cxocU
lences are unfolded in a minnte and careful sur^'ey.
CB. I.]
HISTORr or TSB BEVOUrnON.
145
§ 200. No r«dreA8 of grif^voncM haWng; fnltoved upon Uw
many apjieaU made to the king and to I'artiamrnt, hy and in be-
half of the ooltmiea, either mdjointly or acparately, it h«camo
obriouB to fhpm that a closer union and fo-oiwralion were neoefl-
sary tn viadicato their rijrfita and protect their liljertiea. If a
resort to arms should be indispoosable, it was imposaible to hope
for snwess but in united efforla. If poaoMblo r«drcs8 was to
lie sought, it was as clear that the voice of the oolonies roust bo
hoard, and their power folt m a national orRanization. In 1774,
Haasachusetts recommended the asHombl in^ of a oontinontul Con-
grteB to deliberate upon tlie state of public alTnire; and accordini;
to h«r recommendation, delegates were appointed by Uie colonics
for a Congn«8 to be held in Philadelphia in the autumn of tho
snmc year. In some of the legislatures of the colonies, which
were then in session, delegates were appointed by the popular or
reprcBUitatiTO branch; and in other ca^ieii they were appointed
hy ooiiTCntions of the people in the colonies. ' The Congress of
delegates (falling themaelfra in their more formal acta "the del-
egates appointed by the ffooJ people of these colonics ") asisembted
on the 4th of tMiptember, 1774;'and having chosen officcra, they
adopted certain fundaiiienlal rules for their proceedings.
§ 201. Thus was organised under the auspices and with the
oonaeut of the people, acting directly in their primary, sovereign
capacity, and without tho intervention of the funetionariea to
whom the ordinary powers of govommcnt wore delegati-d in the
colonies, tho first general or national government, which has
been very aptly called "the revohitionury govumment, " sinoe in
Its origin and progress it was wholly conducted upon rerulutioD-
ary principlen.^ Tbe Congress thus assembicd exercised dt facto
and dejure- a sovereign authority; not as tlie delegated agents
of the governments de fado of the colonies, but in virtue of
original powers derive<l fnun the i«v»ple. The revolntlon.iry gov.
crnment, tlius formed, terminated only when it was regularly
superseded by the confederated government under the articles
finally ratifie<l, aa we shall hereafter see, in 1781.'
I 202. The first and most important of their acta was a decla-
t 1 Jonn. «l Omi» t, 8. ft& IT, 4S; » DkntTtAbridg. A^i. f 5. ^ 16, j It, p. St.
• All tb« SulM were Mp(«nnt«l Mcrpt OmtbU.
• i Dm*'* AbrUc. App. p. I, f I, p. I«. 1 13, p. 19.
• Sti]pnrt oa ComC IniTwl 7, 8 <U «a.).
MH.L — 10
146
HISrOBT OF TOE EBTOUmOW.
[BOOK II.
ration that in dctcrmiDing questions in this Congress, each oulony
or province should have one vote; and Uiis became tlie estab-
lished course during the Itevolution. (a) Thej proposed a general
Congress to be held at the same place in Mat- id the next year.
Thej appointed oommittees to take into consideration their ri^ts
and grievances. They passed resolutions that "after the Ist of
December, 1774, there ahall be no importation into British
America from Great Britain or Ireland of any ^ruods, Slc, or
from any other place;, of any such goods an sbttH have be«n ex-
ported from Great Britain or Ireland;'' that "after the 10th of
Sfptembcr, 1775, the exportation of all merehanditK;, Ac, to
Great Britain, Ireland, and the West Indies ought to coase, un-
less the grievances of America are rcdn-xiu-d before that time." '
They adopted a dectanition of rightit, nut differing in eubstance
from that of the Congress of 1765,' and (ifBrming that the rcspcc*
Uve ootonie* arc ciititlod to the common law of England, and the
benefit of such English statutes as existed at the time of their
colonization, and u-hieh tJicy have by experience respectively
found to bo applicable to their local and other circmniituncc&
Hiey also, in behalf of themselves and their constituents, adopted
and signed certain articles of association, contjiining an agree-
ment of non>importation, non-exportation, and noo-consumption,
in order to rarry into effect the preceding resolves; and also an
agreement to discontinue the slave-trade. They also adopted
addresses to the people of England, to the neighboring British
colonics, and to the king, explaining their grievances, and
retjiii'sting aid and redress.
§ 208. In May, 1775, a second Congress of delegates met from
all the States.* TJicse delegates were choBcn, as the preceding
had been, partly by the popular branch of the State legislatures,
when in session, but principally by ctmvcntions of the people in
■* I Jour, of Omb. II.
•8«U)t«,i>. 139.
• 0*01^ (Ud not Kud ddqeatM vnUI tlu IGth «l Jalf, 17rG, who did not uk«
Ibaif kbU udUI the ISth or 8«pU(nb«r.
(a| Ei|i»lily ot n^ammUtiaa *d4
ntbedt; iru lUo iwUud upoa hy Um
wtaktr colonio b th« contntftw? of
1<I4!I, anil au tha prindpd tovw «( Uu
fonUvntalta which mom to WMken iti
tffldmer. h\(irf, Hitt- of I>ew Eng-
tend, 11. aiS: BwMfoft. Hut of IT. S.,
1. 420; TMrlit, Andf** et the Caiatitn-
en. I.]
UlSTOBT OP TBE RBTOLDTIOK.
147
the Tariotis Stat«H.i In a few insbLntx'tt tho choice by the le^R-
latire body was confirra«d by (hat of a convention, and f eonverto.*
They immediately adoptoil a rcxolution prohibiting; all exporta-
tions to Quebec, Nova Scotia, St. Johti'a, Newfoundland, Ooor-
gia, I'xccpt 8t. John's Parish, and East and Wost Fluridiu" This
wu followed up by a resolution that the colonics )k^ inunodiatoly
put into a state of defence. They prohibited the receipt and
iM^tiation of any Itritisli government billa, and the supply of any
provisions or nocesaarinfl for the British army and navy in Massa-
ebmettfl, or tranaporta in their scn'ico.' They recommended to
Kusachuactta to cunaidcr the ofRccs of governor and licuteuant-
Rovcmor of that Province mcnnt, and to make choiec of a council
by the reprcsentalivoa iit ik«KembIy, by whom the powers of gor-
ernment should be exercised, until n governor of the king's ap-
pointment should consent to govern the colony according to its
charter. They authorised the raining of continental troo]M, and
appointed Oencral Washington commnnder- in-chief, to whom
tliey gave a commiiision in the name of the delegates of the
nnitcd coIonicH, They had previously authorized cortain mili-
tary mcafinren, and enpecially the anning of the militia of New
York, and the occuiiation of Crovm Point and Ticondcroga.
They authorized the emifution of two millions of dollars in bills
of credit, pled^ng the oolonicA to the redemption thereof. They
framed nilea for the government of the army. They pnbliahcd
a Btilemn declaration of the causos of their taking up armii, an
address to the king, entreating a change of mcasurom and an
addreaa to the people of Great Britain, rcqucating their aid, and
admonishing them of thi? threatening oviUof a aeparation. They
crcctiMl a general poat-olfiec, and organixcd the department for
all the colonies. They apportioned the quota that each colony
shonid pay of the biHa emitted by Congrc«ft.'
§ 304. At a aubse^iuent adjournment, they authorized the
equipment of armed vetuola to intercept supplies to the British,
and the organization of a marine corpa. They prohibited all
exportatiooB except from colony to colony ander the inspection
> Sm EVsliatloir *. Dmm. S D*!!- 54, inil iwticntNlr Ik* oplnkM of ImbQ, J.,
uul Bl>ir, J., on thia poist. JontvaJ* of 1775, pp. 7S to 79.
* Jonnitli or Cbngna at 1779. pp. 73 t« TV.
■ Jonnwla of C«agt«« of 17TG, f- 103.
« JoniMbof Coagnwof 177J«.p.IlS.
* JounMlt of Congrut o( 1775, p. 177<
148
QISTORT OF THS fiKTOLOTIOK.
[book n.
of conunitteM. Tliojr recommended to New Hampshire, Vir-
giuia, aiid .South Cftrolitia to call conventions of the people to
cetublisli & form of gov«minent' They authorized the grant of
oomiuissions to capture armed vessels and tranajwrta in the
Britisb iHM-i-ioc, and rccoramendod tlie creation of prize courtu in
each colony, resomng a right of appeal to Congreaa.' They
adopted niles for tlie regulation of the nary and for the divi»ioo
of prizes and prize money.^ They denounced aa enemies all who
should obstruct or discourage the circulation of bilU ul credit.
They authorized further emiasions of bills of credit, and created
two military dc|»trtmeQta for the Middle and Southern colonics.
Thvy authorized general rcprisala and th« equipment of private
armi-d veiuKU uf^iosl British vcHaels and property.* Tbcy or*
gauized a gum-ral treasury department. They autborized the
Qxportstiun and importation of all goods to and from foreign
countrifM, nut Hubject to Great Britain, with certain exceptions,
and prolitbitt^id the importation of slaves and declared a forfeiture
of all prohibited goods.* They recommended to the respective
auemblies and conventions of the colooles, whr^re no goremment
mflScient to the exigencies had been eetabhshed, to adopt auch
government as in the opinion of the representatives should best
conduce to the happiness and safety of their constituents in par*
ticular, and America in general, and adopted a preamble which
stated "that the exercine of every kind of authority under the
crown of Great Britain should bo totally Auppressed. " *
§ 24>6. Thofle memmreR, all of which progresaively pointed to
a separation from the mother country, and evinced a determina-
tion to maintain, at every hazard, the libertien of the colonies,
were soon followed by more deciaivo steps. On the 7th of Jane,
1T76, certain resolutions respecting independency were moved,
whicli were referred to a committee of the whole. On the 10th
of Jnnc it wa« resolved that a committee bo appointed to prepare
a declaration "tliat these united colonics are, and of rif^t ought
to be, free and indeix^ndent States ; that they are absolved from
all allegiance to the British crown; and that all political oou-
I JouniKla of CoDgTMi of i;TS, pp. 311. SSS. STS.
• JodnubarOongnMof ITTA. pfk 3U, MO, Ac
• Joonul* at CongKM tA 1TT8, p. 19.
1 JmuuIi of CSonKTHi of 17TS, fip. 10«, 107. Ill, 119.
• JMinali«f OoogMHOf 17T«, pi^ 123,113.
■ i«uMi>«f Ooagnwor ine, ff. i««, it«.
CD. L]
HISTOBT OP TUK BETOLtmOit.
149
nectioa between them ati j the state of Great Britain is, and ought
to bo, (liBSoIvcd. " ' On the 11th of Juno a committee wsg ap^
pointed to profmre and digest the form of a confederation to be
entered into between the colonio«, and also a committee to pre-
purc a plan erf treaties to be proposed to forei^ powers.* On the
28(h of June the committco appointed to prepare a declaration
of independence brought in a draft On the 2d of July CongrcBS
adopted the resolution for indepondpnce; and on the 4th of July
they adopted the Declaration of Indrpendeace, and thereby 8oI-
emnly published and declared *'That these united colonies are,
find of right ought to be, free and iudeficndcnt States ; thnt they
are absolved from all allegian**^ to the Briti.'th crown ; ant) that
all political connection between them and the state of Oreat Brit-
ain ia, and ought to be, totally diiuiolved; and that as free and
independent States they have full power to levy war, com-lude
peace, contract alliancea, establish commerce, and to do all other
acta and thingn which independent States may of right do. "
J 206. These minute dctailn have been given, not merely be-
cause they present an historical riew of the actual and slow prog-
. tnwardii indepenilcnee, but Iwcauiie they give rise to several
^Tery important considerations respecting the political rights and
sovereignty of the sovoral colonies, and of the union which was
thus spontaneously formed by the i)eoplc of the united colonies.
y \ 207. In the first p1soo,<antec4.'dcnt to the Declaration of Inde-
pendence none of the colonics were, or pretended to be, sovereign
states^ in the Honiie in which the term ** Bovcrclgn " is sometimes
applied to stutos.' The tenu "sovereign " or "sovereignty " is
used in different senses, which often lends to a confiision of
ideas, and sometimes to very mischievous and unfounded 00D>
elaiona. By "sovereignty" in its laig:eat senae is meant su-
preme, absolute, uncontrollable |)owcr, the j\t* aunnni imptrO,*
the alMolnte right to govern. A state or nation is a body pol- i
itic, or society of men, united ("in-lhtT for the purpose of promot- '
ing their mutual safety and advantage by their combined Strength.'
By the very act of civil and political association, each citizen
< Joonak of C<nigTM* of 177*, pp. MS. 2IM.
> Jovnuli or Oomgnm of 1776. |<. 107.
• S Dan. no, IMF lUiir, J. ; S l>ukti KMif. An>. I S. ^ ICi, 1 1. p. ii;| S, p. IS.
• t Bl. Gcmm. tfl i 3 D>U. «71, pn Jaj, C. i.
• T*tul, a 1, ch. 1. I 1 ; S D>U. 4U, pw lAltora, 3.
150
BISTORT OP THR RBVOLDTION.
[book II.
subjectH himnelf to tlie authority of the vhole; and the author-
ity of all orer each member eBSontially bvlougs to the bod; pol-
itic* A Btate which pueBesses thia sbttolute power, without any
dependence u])on any foreign power or statv, is Ju the largest
somie a aovereign atate.' Aud it ia wholly iiomatvrial what is
the form <A the f(ovemmcnt, or by whose hands this absolute au-
thority is exercised. It may be exercised by tlio people at large,
aa in a pure democracy ; or by a select few, as in an abaqluto
aristoeracy; or by a eingte person, as in au absolute nionarehy.*
But " survrei^nty " is often uacd in a far more limited sense than
tliat of which we have spoken, to dcsi^iatc such political powers
as in the actual urKanizatiou of the particular state or nation are
to be cxelusively exercised by ocrtain public functionaries, with-
out the control of any aupcrior authority. It is in this aense
that Blackstoiie employs it, when he says that it is of " the very
enco of a law that it is' made by the supreme power. Sorer^
Ignly and legislature are, indeed, convertible terma; one cannot
suWiat without the other."* Now, in every limited governmeat
the power of legislation is, or at least may bo, limited at the will
of the nation, and tlierefore the legislature is not in an absolute
aenfie xovereign. It is in tho same fionac that Blackstone says,
**the law ascribes to the king of England the attribute of aorer^
eignty or prc-eminetux-,"' because, in respect to the powers con-
fided to him, he is dependent on no man, accountable to no m&u,
and subjected to no superior jurisdiction. Yet the king of Eng-
land cannot make a law ; and his acts, beyond tho powers assigned
to him by the Constitution, are utterly void.
§ 208. In like manner tho word ** state" is used in rnnoua
scnsra. In its most enlarged sense it means the people compos-
ing a particular nation or community. In this sense the* state
means tlie whole po<ople, united into one body politic; and the
state and the people of the state are equivalent expressions.*
' Viitid. a I, ch. i,§i
* 9 rwi. (M, U7. ptr Wll«», J.
* \Mf\, B. 1. cb. 1. M 11
* 1 BL Comin. M. Ste «Iim 1 TwkM^i Bbck. Conun. App. noto A., • oowamtay
on tbi* ckiuc of the •nlhor'i text.
* 1 Bl. Conun. SIL
* PenMl«w tr. Dmhc, S XHX\. R. S3, »t. [h Iredell. J. ; ChUutoi •. Oasf^ S
Dill. US, pfT Wllwn. 3.; S WlUon't Lmt IWg Dmu'i Appi. f t^ ^ OS. Bto JH.
liebar'i I'oUiiod RtUo^ B. % «k. 4, tk )«.
CO. I.]
HI8TDB7 OP THE BBVOLUnOK.
161
Mr. Justice Wilnon, iu hU Law LecturcB, usca the word "state"
in its l>rondc«t weam. "In free states," saya he, "the people
form an artificinl person, or body politic, tho lii^est and noblest
that can l>c known. They form that mural person, which in one
of my fonner lectures' I desenbed as a complete body of {reC)
natural persons, united to)^-thor for tlivir common benefit; as
having an understanding and a will ; as deliberating, and resolv-
ing, and acting; as possessed of interests which it ought to man-
age ; as enjoying rigtits which it ought to maintain ; and as lying
under obligations which it ouglit to peKonn, To this moral
person we assign, by way o£ eminence, tJio dignified ap))ellHtion
of STATE."* But there is a more limited aenso in which tlie word
ia often used, wliore it expresses merely the poaitire or actual
organixation of the legislative, executive, or jadicial powers.*
llius, the actual government of a state is frequently designated
by the name of the state. We say, the stato has power to do this
or that; the state has pSMcd a law, or prohibited an act^ mean-
ing no more than that tho proper functionaries, organized for that
purpose, have power to do tho act, or have passed the law, or
prohibited the particular action. Tho sovereignty of a nation or
state, considered with reference to its association, as a body pol-
itic, may be absolute and unconlrollable in all respects, except
the limitations which it chooses to impose upon itself.* But tlio
sovereignty of the government orgauJKcd within the state may be
of a very limited nature. It may extend to tew or to many ob-
jects. It may be unlimited as to some, it may bo restrained as
to others. To tho extent of the power given, the government
may be sovereign, and its acts may be deemed the sovereign acts
of the state. Nay, the state, by which we mean the people com-
posing the state., may divide its sovereign powers amtmg various
fuuetionariea, and each in the limited sense would be sovereign
> I WHbim'i Lett. SM, SOU.
• S Wllaw'* l.«eL ISO, 121.
■ Mr. UaJiina, hi U»«l*bant« rapoH In iIm Tli][tnU Ugtilatnn ja JkiiuT;r, 1900,
*dT«rti M tbr diffemt HMCB in wlikl) Um vonl "ttu*" UdmJ. Ho ■■);•, "It win-
4mi1 trap. Ui«l the term ' «UUa ' » aometiinei oanl bi ■ vagM mum, tai loiMtHOM
hi diffeicBt vnat^ wMKitl^ 1* tbc nililBct to wbieh it u apfilicd. Ilia it tauatbam
■HMU die Kparal* MctloM of iMftloi; a(cat4n] b; the politLeal aoekUm wiUiiti mmIi;
•Mni«lm*« tti* jttrtiRiiliw fnmuMnb wtablbhwl hy thoM M«l«tiMj Mraatlma IhoM
MciMir*. M nij^niiad late tb«M putlentv ptntntimit*: akd tntljr. it ni«aM UM
^Mpb oampoaiag thoM |«litKal ndrtiM, in llinr Ughmt nvmign tapaoit;."
* % Daa 4SI, InMI. J.; Id. 435, US, p>r WAm^ J. •
X6S
BIGTO&T OF TUB BBVOLDTIOK.
[eOOE IL
in reapect to the powers conlided to esdi, aod dependent in all
other cases. ' Strictly speaking, in our ropublican torna of gov-
ernment the absolute surGreigntj' of the Qatiun in in thu pGopl«
of the nation ; and the residuary suveroitni^' ^^f i^ch Statu, not
granted to any of it« publie functionaries, is in tJie people of tlio
»te.«
§ 209. There is another mode iu which wo speak of a state as
soveroign, and that is in reference to foreign states. Whatever
ma; bo the internal orgunizatiou of the government of any stat«y
^if it haa the sole power of governing itself and is not dependent
Ipon any foreijrn state, it is called a aoetreiffn stale; that in, it is
a state having the same rights, privileges, and powem aa other
■dependent states. It is in tliis sense that the term ia generally
in treatises and discussions on the law of nations. A full
consideration of this subject will more properly find place in
some future page.*
§ 210. Now it is apparent that none of the colonies before the
Revolution were, in the moat large and general senae, indepen-
dent or BuvcreigD communitiea. They were all orignally settled
Bsder, and subjected to, the British crown.* Their powers and
> S D*I1. ». fr lr«d«U, J.; S DilL (SS, IS7. p«r Wlbon. J.
■ 3 IHIL 471, 171, |«r Jay, C. J.
Mt. J. Q. Ailim*, in hu oratioa mi Um 4lh of Julf, IStl, pabUibed afU* tbe
)irR|itnU(in of tkoc OovuMatuio^ OMa tb« bOowi^g lufiufe : " [t U not tnw that
lh(T« iiiwt n*tda la all KDnnmMti aa abaeliit*, naeMtnUahU, (fnabtl bliv and ilMfMfe
ponr : nor U ndi p««ar In an; maiiMV wawnUl to MvcnigD^. UnesottvUabie
power cxitu in no garWMBwnt oa aartti. Hm atanuat <lcipati«na in anf nfnoa and
Id tvtrj a{(e of lbs itwild an and kir* bean nndcr faipttnal eontnL (Talknllad |>o««r
btkogl not to man ; aad rotten oil! be lbs fMradatiiui at ntaj gmtmcMtA baalaji
ap»Mtk • niBJilna tor Itt tujiport. LmoI of allcan hba pndkalrd of agoTimuHat
infoani^ In U laandod upon aa orijjnal oeaD|«et. The fnUmn «f an ak•«lgll^ bn-
riitlhla dMiiotic ponrtv, oriating in «rnf gnratMnant MMnowte^ m JnewnfliMa witk
till ftnt priaciplM of aatunl i^gbt."
■ Dr. Ratb. in a iioUtkal ceumaafoalloB, ITBS, mm the term *■ wrmfinQ* la
aaoditr and aatwhat mon tiailtad mam. H* okjt, "Tba peoph ot Amariea bar*
■tialakfa tlia ■Naatag of tbe •onl 'aorceeigntjr.' Henoe Mcb Blate prolneda to be
mmnifn. In K«ro|w ll ia apf UmI to tbcae etatea wbteh itmm tbe pxew of makia£
wt and peao^ of brrninc tnMi« and tbe lika. li tbla pwwt bulot^p «ad; ta Oen-
pe^ tfaey an the only avvsRiiga povar ia tb> tTnii«l SuW Wt oonnil a flHlW
■Jatafce in oar Ueaa of tbo wocil ' imtepM^aot.' Ko ladlvidul States a ■oah, ba
aa; claim to IndefiuidMC*. 8be U indifiMdml only In a nnion with bar titter Stattn
ia On^Tat*." 1 Amar. Uiuaaia. 8, ». Dr. BirUa. on tbe otba band, in a tinUir
aaaj, txpUna tba oparatkai ef lb* aTtiaoi af tba «onE»Aantkti ia tba nanatr wbJcb
hM btcn giT«a in lb* la^L 1 Aaar. Maeiwi^ 13, li.
' SDaa ITl, paJar.CJ.
CB. I.]
HIKTORY OF THE BETOLCTIOX.
153
authorities were derived from and limited by their rcspcctiro
ohArtera. All or nearly all of these charters eontrollbd their
legiatation liy prohibiting them from making laws repognaDt or
coatrary to thorn; of England. I'he crown, in many of theoif
poftaeased a negative upon their legislation, as well as the cxcla-
sive appointment of their Biii»erior officers; and a riglit of revi-
sion, by way of apfkcal, of the judgments of their courts.' In
their most solemn declarations of rights, they admitted them-
seWcs bound, lu British subjects, to alk'giauce to the British
crowD : and as sucli, they claimeid to be entitled to all the rights,
liberties, and immunities of frccborn British subjects. They
denied all power of taxation, except by their oum colonial legis-
latures ; but at the same time they udmitt^id tlivmsclves buond by
acts of the British Parliament for the ragulutioo of external com-
merce, so as to secure the commercial advantages of the whole
empire to the mother oountr}', and the commercial booefits of its
respective members.* So far as respects foreign stut^thc colo-
nies were not, in the sense of the laws of Ration4vBovcreign
states, but mere dependencies of Great Britain, They could
make no treaty, declare no war, send no ambassadors, regulate
no tnteroourse or coismcree, nor in any other shape act, as ■o^'er-
oigna, in the negotiations usual between independent states. In
rcspoct to each other, tbey stood in the common relation of Brit-
ish subjects; the Ic^slatiou of neither could be controlled by any
other ; but there was a common subjection to the British crown.*
If in any 8en»e they might claim the attributes of sovereignty,
it was only in that sul)ordinate sense to which we have alluded
•S exercising within a limited extent certain usual powers of sov>
ereignty. They diil not even affect to claim a local allegiance.*
% 211. In the next place, the colonics did not severally act for
themselves, and proclaim their own independcnoo. It is true
that some of the States had previously formed incipient govem-
aents for themselves; but it was done in compliance with the
reoommendatinns of Congress.' Virginia, on tho 29th of June,
> 8» U»nUr> Hbt. of ColonWt. p. 4$S; icnnuii* at C«ii«nM. 1771, ^ »■
* Jaatiai oT Caagntm. ITT*, pp. K. U, 8S, »: ins, pp. 1(3. 156; ManhaU'a
HM. or (>lanl«. A, 14, pp. 412. 4R3.
* 1 Ch«ltnimt'> AkmU, SSS, «S7: 2 Dall. 470. par Jftjr. C. ].
* Jtmrad «l Oimgnm. 1776, p. tSS; S Bul Col. 591; M«nJi. Cotmb*, A'pp, Ko.
* Joaraal gtOragraii, 17;s, pp. Its. 331, 13S, STS; 1 Pitk. Uirt. 351, iU; Uanh.
1S4
DISTORT OF THE BETOLtmOM.
[BOOK n.
1776, hy a convention of dolegatcs, deelnnMl " tlto goronuiumt of
this oountrj, m formerly exercised under the crown of Great
Britain, totally dissolved ; " and iirorceded to form a nbw coiutj-
tution uf i^vernnient. New Mampshirc also formed a govern*
ment in December, 1775, which was manifestly intended to be
temporary, " during (an they said) the unhapj))' and unnatural con-
test with Oroat Britain."' New Jersey, too, (.■stabliahcd a frame
of government on the Sd of July, 1776; but it was expressly
declared that it should bo void upon a roconciticition with Great
Britain.' And South Carolina, in Man-h, 1776, adopted a con-
stitntion of government; but this was, in lilce nuinner, "es-
tablished until an accommodation between Great Britain and
Amel-ica could bo obtained."^ But tlio doelarutiun of iudepcnd-
ence ot all the colonics was the united act of all. It was "a dec-
laration by the representatives of the United States of America
in Congress assembled;" "by the delegates api>ointcd by the
good perJk of tlie colonies," as in a prior doclaratiun of rif^tts
they wer*tallcd,* It was not an act done by the State Rovom-
ments then organized, nor by pcn»onfl chosen by them. It was
emphatically the act of tlw iifh.ole people of the united colonica,
by the inatmmentality of their represoatatives, chosen for that
among other purposes.* It was not an act competent to the State
governments, or any of tliom, us organized undur their charters,
to adopt Those charters neither Gontemplat«d the cose nor pro-
vided fur it. It wus an act of original, inherent BovcrciKnty by
the people themselves, resulting imia their right to change the
form of government, and to institute a new one, whenever nuces-
MT}' for their safety and hai)pine88. So tfao Declaration of Inde-
pendence treats it. No State bod presumed of iloolf to fonn a
new government, or to provide for the exigencies of the times,
without consulting Congross on the subject; and when anyaotcd,
it was in pursnance of the recommendation of Congress. It was,
therefore, the achiorement of the whole for the benefit of the who)^
The people of the united coloniee made the united colonies free
C«laa. <^ li, l-p. 441, 447 ; B Honing, Stnt lit; IIS, ; ft Du*'* AbriJg. App. | fi,
p.l«.
> IBelk. X. n*int>. ch. 3S, pp. SIM. MB, 813; 1 PtU. BM. »I, SS8.
• 8Uk«'i Hilt. Cokn. SI, TS.
• eiofa^a Hiot. Ookm. IM; 1 Pia. KUl SGO.
• Jonnul, 1770, p. UI; Joamil. 17>4. pp. 27. 4fi.
■ t IklL 470, 4T), rw 1*J, a J.; V D*M-« Abriilc. App. (| 11, IS. pp. SI, 14.
en. t.]
BIStOSr OP tBB REVOUmOM.
16&
and iti<lL-|M.-nd(.-nt Stiit4.-fl, aiid absolved thorn from all allegianoe to
tb« British cruwiu Tito Dcclunitiun of Independence bu ac-
cordingly always b«cn treated as au act of paramount and sover-
eign uuUiority, complete aod perfect f^er «e, and tpto facto vorkingj
an entire dissoliiiioa of all political conncotiou with, and alio-'
giaacc to, Oreat Rritain. And this, not merely as a practii^al
fact, iMit in a legal and constitutional view of the matter by
eourta of jnstice.*
§ 212. In the debales in the South Carolina legislature, In
January, 17KK, respecting the propriety of calling a convention
of the people to ratify or reject the Constitution, a distinguislied
statesman' used the following language: "This admirable mani-
festo (that is, the Declaration of Independence) sufficiently re*
futea (he doctrine of the individual twvcrcignty and indcpendenoa
of the several States., In that dt-oliu-utiuu the several Statca are'
not eren enumerated ; but, aftor reciting in nervous language and
with convincing arfriuneuls our right to independence, and tlie
tyranny wbieli eouijielk-d us to assert it, the dc<claration is made
in the following words: 'We, therefore, the reproBcntatirca of
the United States, Ac, do, in the uamt-, &c., of tli<! pxid ))eople
oi these colonies, solemnly publitth, &<:., that these united colo-
nies are, and of right ought to bo, free and independent States.*
Tbo Bcparato ln<Iir]>i;iideac« and individual s<^vereigiity of the
several States were never thought of by the enlightened band of
patriots who framed this declaration. The several States are
not even mentioned by name in any part, as if it was int^-nded to
impreiw tlie maxim on America that our freedom and iudcpcn-
deooo arose from our union, and that without it we could never be
free or independent Let us then consider all attempts to weaken
tins union, by maintaiuiug tliBit each State is separately and in-
dividually independent, as a species of political heresy, which
can never benefit vt, but may ^ring on us the most serious
distresses. " '
> 3 DillM ft- tio.
* Mr. OurU* OoUnraith rtnckiiBr,
' • IHIata In SoaOi CaroUn^ 178B, printed I? 1. E. Mnkr, CluflMlM, 1S», ;
43, U. Mr. AJuiu, itt U* oration on Uia <th «f Jaly, ISSI, «klch U rdn^i (or ll
vlit*« oT MMtUutkAwl pfineiplM, bukti upon tlu mm doctriM u MufaknUt I
Thevgh tt lui b«n |wblbhed tlnot th« MigistlYMfantton tit tbta* Uetaia^ I
knfl njnolf «if an opfwrtaBitr to ua* hii MtbCDit; in «otrolNnilM«i of the mm* <
"The anion nf the odonke fatd pcrcedod thi* dechntko [«f lnikpen4««o*l and
156
msrOBT OP TUB RBVOUmOM.
[book 11.
'!
§ 213. In the next place, we have iwfii that thi? power to do
this &t-t n-RH uut derived from the Statu guven)in<>ut», nor was it
done gcncrnlly with their co-operutioi^ The queiition then nat-
urally pifflcnt* it8«lf, if it is to \>« coM«idered iw a national act,
In what manner did the colonie« become a nation, and in what
manner did Congrcso become possessed of this hatiooal power T
mie true answer mitat he-, that as 8t>on an CongrcBH assumod pow-
«rs and pasned nteaaurea which were in their Qatura national, to '
that extent the people, from whose acquiescence and <!on8«nt the>'
took effect, must bo considered as sgreoinK to form a nation.' i
The Congress of 1774, looking at the general tcnns of tlic cora-
miestons under which the delegates wore appointed, seem to have
posHcHsed (he power of concerting such measures aa they,deemed
best to redress the grievances and preserve the rights and liber-
ties of all the eulunie*. Their duties seem to liave been princi-
pally of an advisory nature; but the exigencies of tJie times led
them rather to fuUow out the witthes and objects of their constit-
uents, Uian scrupulously to cxaiuiue the words in which their au-
thority wag comraunicated.' The CongnsB of 1775 and 1776 were
clotbed with more ample powers, and the language of their com-
missions gfiierally was suiliciently broad to embrace the right to
pass measaresofa national character and obligation. The caution
necessary at that period nf the Revolutionary atniggle rendernl
that language more guarded tlian the objects really in liew would
justify ; but it waa foreseen that the spirit of the people would
eagerly second every mpasiirn adopted to further a general union
and reaiiitance against the British claims. The Congress of 1775
tlw conunuiotmtat of the <nr. Tbf dMUntwn *m joint, that lh< n>il«d coteole*
w«n tiM and indtpendMit Stataa. tnt aot tli*t aav one of tfaem ma a free and in^
pandant Biota, upanta trom Uw rart." "Tbe Dadaratioa dI IndfpenihAM ava ■
McUl ooiapact, bjr wUeb tbc >bolD paopla cowdaaUd with taA tttiMi, «nd «mIi
dlimi <ri(b llie wbola pMipliv that lh« ni^tad mImiUi wm, and of right ou|[tit t» ha,
trm and bdapmidtBl alatti. To thla oompari. vnlaa «rw ra vital m fltwdom nr liulf-
pcMleno*. Tb» Dfxlamfam oT iadqwAdeno* anaannnd th« ■•tctuoc ef U>* UiiftMH
nnital «oloniCB from tha raat of tht Briliah Biapii*. aad tbe axutenoa dT Ihrir rMfi^
(mai that dajr forth, aa an isdeptndaiit oatton. Th« p«>f4« of all the edoniAk apMlc-
ing by Ibrir tvpmacolatirB*, oonititated ihoMMdna <»* moral pHsM hcfci* the boa
ef Uwlr (illaw-nan. Tha DMlantion of ImWpowknoa waa ML • dMdarathm el
IHwrty modjr aeqvirwd, nor Ma it ■ fono «l govmmimt. Tha r*o)ilK of th* ooImIm
wm alrmdr In*, aad Ihaii fomiii uf j^onraiiMBt won Mriou*. Tlicjr wara all crioaiw
of • MoninliT. Tha king of Urmt Hritain w«b tMr <aiaiiiaa aovEmgn."
t s iitii. It. SO. 81, WO, 9\, loe, no. ui, ur.
* 8 Hail. B. »i.
CB. I.]
HlflTORY OF TBE REVOLIHTOH.
157
accordingly aasumed at cHioe, aa we have seen, the exeKJae of
some of tbo highest functiona of sorereignty. They took meas-
ured for Dationul (Icfcawe and rcaistancc ; they followed Dp the
prohibitions upon trado aud iiit^rcourse with Groat Britain; th«^y
raised a Dstional army and nary, and authorized limited naticntal
hostiltlitt) against Great Brituiii; th«y raised mon<>y, emitted
hilla of credit, and euutracted d(.-bt« upon national account; they
eatablisbed a national post'Oflice; andiinally they autliorized cap-
tures and condemnation of priKes in prize courts, vith a reserve
of appellate juriftdiction to IhemaelTCS.
$ 214. The same body, in 1770, took bolder steps, and exerted
powers which could in no other manner be justified or accounted
for, than upon the supposition that a national .union for national
pur]M»es already existed, and that the Congrcas was inrested
with sovereign power over all the colonics for the purpose of
preserving the ooiomon riirhta and liberties of alL They ac-
cordingly authorized general hostilities against the persona and
property of British subjects; tfacy opened an cxtensi\-u oonunorco
with fori'ign countries, regulating the whole subject of imports
and exports; lliuy uiirborixcd the formation of new governmL-nts
in the colonies; and finally they excrciiied the sovereign preroga-
tive of dissolving the allegiance of all colonics to the British
crown. The validity of these acts was never doubted or denied by
the people. On the contrary, they bocomc the foundation upon
which the superstructure of the liberties and independence of the
United States has been erected. Whatever, tlien, may bo the
theories of ingenious men on the subject, it is historically true I
that before thu Declaration of independence the»e colonies were ||
not, in any absolute sense, sovereign states; tliat that event did
not find tliem or make them such ; but that at the moment of
their separation they were under the dominion of a superior eon-
trolling national government whoae powera were vested in and
exercised by the general Congress with the consent of the people
of all the States. <
} 215. From the moment of the Declaratioa of Independence,
■ Tbla wbols Mbfwt b wy saply dlwnuMd hj Ur. Dum to bii Appcadb to tht
Blatb rolinne at kl« AMdgnmt of Ih* l^m : tnd muij at hb viowt edseU* with
thaw (laiAl In Iha Uxt. Tha vholn of Ifcal Apfamllx to worthj of tk* p«niad of
vntj coiutitirtiaiMl ksjor, even tfaon^ ho Might (liffrr Ttna toma «4 lh« cos.
dniou ti the Uandl ■ntlior. He viQ tb«ra Bad tMoh iMtoaia^ fnm iocammtnf
arSTORT OP TUG BKVOLDTIOK.
[aooE n.
If not for most parpoaeB at an antecedent period, the united colo-
nies mnst be coneidored as beinji a nation de/aeto, havin); a gen-
eral government over it, created und acting by the general oomwut
of the people of all tbe colonies. Tlic powers of that government
were not, and indeed could not bo, well defined. But still its
oxcluaive sovurui^ty, in many coses, was firmly CHtablished;
and ita controlling power over the States u-as in most, if not in
all, national meaaurca universally admitted.' Thu Articles of
CiHifederation, of which wc shall havo occasion to spcafc more
hereafter, were not prepared or adopted by Confess until No-
vombcr, 1777;' tJicy were not signed or ratified by any of tlie
States ontil July, 1778; and Ibey were not ratified, so as to be-
comr; uMiniitory upon all the States, until March, 1781. In the
fntcrmt'dimi; time, Congress continued to exercise the powers of
a general government, whoee acta were binding on all the States.
And thotigh they conBtantly admitted the States to he "sovereign
and in<le{)eii<lent onmmunitii?A,"*yet it must be obvious that the
temis were used in the subordinate and limited sense already
alluded to; for it was impoHtiible to une them in any other sense,
since a majority of the titatea could by their public acta in Con*
gress control and bind the minority. Among the exclusive pow-
re« exercised by Oongrpas were the power to declare war and
make peace; to aulhorixe captures; to institute api>ellat« prize
courts; to direct and control all national, military, and naval
operations; to form alliances and make tTeaties; to contract
debts, and issue bills of credit ufion national account In respect
to foreign governments, wo were politically known as the United
«vlil(ii«a of A piblie n>tat«, whid Iim not bitliNto Ibm prMiiitrf la ■ "HttitH vr
■cmrato riutp*.
Bom* taUTMting tien of this Mtyoct m ■!«> pnanted in PretUrst Kmaofft
Mnnfia on latmul ImproMnnU, on tiw ftli oT Hajr. 1833. appirDded to U* lUmagt
TMpMti^ the CninlMvUiul Road. Sn, (■pKull)', pMtra S and 9.
When Mr. Ctikf JoKJca UanUl. io C^m ti Oihbon* l» WIimL R. 187), kdaUa
that tb« But«i, bffora tb* fcnnaUaa of thr CoMtllDti«a, wft* tovmigii sn>l indvpra-
iutt, ud wtn connr«tnl vtth taob olbcr onlf \>j a laagne, it ia MuiTnl Uirt lie mm
tlw ODni " (Of R*<gu " in a very mtriettd mumi Dndcr I)m coaUmtian tbBr* wcra
n«ny limitalion* tapon tbe pomn of the 8tat«a.
> Sm Ponhallov V. Domic, 3 Dall. K. G< ; Wai« r. Hjllon. S thih iW. pn Owm, J.
Sn ll>« l^lreiiUr l,Mt4r ot Crnigma, Uih Srpt., 177S ; S Jour. CoDg. 311, M, U9.
* Joar, of CnnK. 1777. p. 602.
■ Sot Utter of I7th Nov., 1777, b; Coapei^ wewmfding tfct Anidm of Obb*
fedmtkia g Joomal oT 1777, pp^ £13, SN.
CB. ].]
BISTOfiY OF THE SEVOLUTIOH.
169
States only; and it wag in our national capacil}*, as Buch, that
we iw-nt and rvcciv-vd umbaiwadors, vntorcd into trvaticB and al-
lianccii, and were admitted into the gcnorni communis of na-
tions, wbu might cxereiftc the right of btdUxorcnts, and claim an
equality of sovereign powers and premgativos.'
§ 216. In confirmation of these views, it may not be witfaont
use to refer to the opinions of some of our most eminent judgra,
delivered on occasionK which required an exact examination of
the subject In Chisholm's Executors v. The State of Geor-
gia,' Mr Chief Juntice Jay, who was equally ditttinguished as a
Bcvolutionary atalesman and a general jurist^ expressed him-
self to the following effect: "The Revolution^ or rather the
Declantion of Independence, found the people already nnitcd
for general purposes, and at the same time providing for their
more domestic concvms by State conventions and other tem-
porary arrange montx. From the crown of Great Britain the sov-
ereignty of their ouuntr>' piused to l\its peoplt of it; and it was
then not an unoommou opinion Uiot Uic unappropriated lands
wliich belonged to tJiat crown passed, not to the people of the
colony or States within whose limits tliey were situated, but to
the wkole peofU, On whatever principle this opinion rested, it
did not give way to the other; and tkirlrtn tovtrtinntUi were
considered as emer^ng from the principles of tJic Revolution,
combined by local convenience and considerations. The people,
ncvortlieless, continued to consider themselves, in a national point
of view, as 9tu peopU; and they continued without interruption
to mana^ their national concerns accordingly." In Pvnhaliow
VI Ooane,* Mr. Justioo Patterson, who was also a Revolutionary'
stat^.'sman, said, speaking of the period before tlie ratification of
thf confederation: "The powers of Congress were revolutionary
In Ihcir Qoture, arising out of events adequate to every national
emergency, and cwxlensiv** with the object to be attained. Con-
gress was (lie general, supreme, and controlling council of the
nation, tlie centre of ^k|, and the sun of the political system.
Congress raised arm^^Htted out a navy, and prescribed rules
for Uif ir gnvemmcnt, JFc These high acta of sovereignty
were submitted to, acquiesced in, and approved of by the people
of America, Ac. The danger being imminent and common,
> 1 Amrr. Hwniia, IS; 1 K«nt, Cowd. 1», IM, IM.
> 8 D>!L 419, tTO. * 8 DtIL SL
1«Q
HrerORY OP THB RETOLUTIOK,
[BOOK n.
It became necesftary for the people or colonies to ooalcsco and act
in concert, in order to divert or break the riolence of the g«th-
Oring storm. They accordingly grew into uninn, and fonncd ono
great political body, of which Congress was the directing princi-
ple and soul, &c. The truth is, that tbe States, indiridu-
ally, were not knov'n nor rcfofinizcd as sovereign by foreign
nations, nor are they now. The Stat«B collectively under Con-
fess, as their conncctinK point or bead, were acknowledged by
foreign powers as soveroi^t, particularly in Ibat acceptation of
^ the term which is applicable to all threat national conoema, and
' in the exercise of which other guvereigns would be more imme-
diately interested." In Ware v. Hyltoo,* Mr. Juaticc Chose,
himself also a Revolutionary statesmsn, said; "It haa been En-
quired, what powers Congress posBOSsed from Uie first meeting
in September, 1T74, imtJl the ratification of the confederation on
the 1st of March, 1781. It appt'ura to mu that tltc powers of
Congress during that wliolo period were donved from tlie people
they represented, exprc-Hsly ^ven through the medium kA tbeir
State conventions or State legislatures; or that after they were
exercised, they wore impliedly ratitiwl by tho acqaiesconce and
obedience of the peoplt, kc The powers of Congreoa originated
from necessity, and arose out of it, and wore only limited by
events ; or, in other words, they were revwlut ionary in tboir nature.
Tiicir extent depended on the exigencies and ncvessitics of public
fairs. I entertain this general idea, tliat the several States
Itetained all internal sovereignty; and that CougrcAs properly
[poncBScd the rights of external sovereignty. In deciding on tho
iwers of Congress, and of the several States before lh« confcd-
[«ration, I sec but one safe nile, namely, that all the powers act-
lally exercised by Congress I>efore that period were rightfully
terciaed on the presumption, not to he controverted, that they
^were so anthorized by the pec^le they represented, by an express
or implied grant; and that all the powers exercised by the State
conventions or State legislatures wore|^t| rigfatfuDy exercised
on the same presumption of authorit^^^Ri tlie [woplc."'
§ 217. In respect to the powers ot^hc Continental Cqpgress
exercised before the adoption of the Articlea of Confederation,
1 S Dan. 199,
* 8*« «1m 1 Kent. CowA. L«ct. 10, p. Itfli PmliWal MoBro*'* lUpMlUMi and
, «h «f Vaj. iXt% PPL S, 9, 10. 11.
CB. I.]
HISrOBT OP TDE SETOLDTIOir.
161
few questions were judicially discussed during tho Revolutionary
contest: for men bud not leisure in the heat of war nic«l}- to
scrutinize or wuiKli such subjcctit ; intfr arma tiUnt U^ga. The
people, rcljiag on the wisdom and patriotism of Congress, si-
Icullj acquiesced in whatever authority thi-y as8imicd. But soon
after the organization of the present government, tho question
was most elaborately discussed before the Supreme Court of the
Unitci) States, in a case calling for an exposition of the appellate
jurimliction of Congress in prize causes before the rntilication of
the confederation. ' {a) The result of that examination was, na
the opinions already cited indicate, that Congreas, before the
confederation, poftseased, by the consent of the people of the
United States, sovereign and supreme powers for national pur-l
poses; and among others the supreme powers of po^cc^and WilCrA
and, as an incident, the right of edtertaining appeals'in the laat J
resort in prize causes, oven in opposition to State legislation. /
And that the actual powers exercised bv Congress, in respect to!
national objects, furnished th^ best (^position of its constita-^
tional authority, since they emanated from tlic representatives as
the people, and wore ooquieaced in by tho people.
> PvnlMllmr «. Domm. 8 Dill SI. 80, 88. BOi 91. 9i. 109. 110, 111. 11% 117; JfW-
nal) of Ca^ns, Maieh, 1I7», Fi<- 88 to SS; 1 Kent. Conun. lOS, IW.
'(a) Ad IntorMttBg >e£««nt of tbtinfr^ Hr^_
tjorenj-trith Pcoiuj'ImiiBonrttitJiutl- *'1J* . ,
dktiod «f Congrcy tn price cmuw, uid ofliy Dotlw hj)A» mo GrOrgt "U. mI-
of Uic [«rt tikeo \ij tlw tnin'mf kwjrer lu, (ip. {>5 dtaj.
t.S. i,J)iia>»i it, watUM^ Of f>P
>I iulbflhy, will b* (ottoA kot^Ub
VOL. I. — 11
162
BISTOilT OP THB COSPEDEB.ITIOK.
[book II.
CHAPTEB II.
ORICIN OP THE OOXPEDERATtON.
§ 218. The union, thus fonocd, grew out of Uic exigencies of
the times ; and from its nature and objects might be deemed tem-
porary, extending onljr to tlio maintenance of the common iiljer-
ties and independence of the States, and to tenninato with the
return nf peace with Great Britain, and the accomplishment of
the ends of the Revolutionary c<mto«t. It was obvious to reflect-
ing miudu that such a future separation of the States into abso-
lute, independent communities, wiUi no mutual tics or controlling
national Ku^'cniment, would be fraught with the most imminent
dangers to their common safety and peace, and expose tlicm not
only to the chance of rt#uuqucst by Gre-at Britain, after such
BC])eration in detached contests, but also to all the hazards of in-
ternal warfare and civil dissensions. 80 that those who had
stood side by side in the common causo nizainat Great Britain
might then, by tlie intrigues of their enemies and the jealousies
always incident to neighboring nations, become instriimoiits in
the hands of the ambitious abroad or t)ie corrupt at honte, to aid
in the mutual destruction of each other; and thiis nil surccs-
sivoly fall the victims of a foreign or domestic tyranny. Such
considerations could not but hare great weight with all honest
and patriotic citizeiix, indi^pendcnt of the real bletutinKS which a
pcnuaneiit union could not fail to securo tliroughout all the
States.
§ 219. It is not surprising, therefore, that a project which,
even in their colonial state, had been so often attempted by some
of them to guard themselves against the evils incident to their
political weakness and their distance from tlie mother country,
and which had been so often defeated by the jealousy of the crown
or of the colonics,' should at a very early period have occurred
to the great and wise men who assembled in the Continental
Congress.
> S Hu. CoU. 1. kc: 1.1 SSli 8 HeldHiTa laiMb, W ud Bote; Uuiball, Colon.
S84, tti, iti; 1 Kent, Comm. 1»0, IBl.
CB. n.]
OUCni OP TOE CONPEDEBATIO.V.
163
§ 220. It vill be an instnictWe and uxcful lesson to ns to
truce hUtoricaily the stepH which led to the formalion and final
udoptioii of the Articles of C'onfodoratton »iid ]M-r|M.-tiiul imion
bctwix-n the L'nited Htates. It will hi; imttructivc by dievlosinff
the real dif1icukic» attendant upon such a plan, even in times
wlien tlie necessity of it waa forced upon the minds of men not
only by common dang<Brs, but by common protflolion, by conirnoa
feelings of affection, and by common efforts of defence. It will
be iiscfii), by moderating the ardor of inexperienced minds, which
are ajkt to imagine that the theory of goremment is too plain,
and tlie princi))lcs on which it should be formed too obvious, to
learo much doubt for the exercise of Uic wisdom of stutesmi-n or
the ingenuity of speculatisis ; notJiing is indeed more difficult to
foresee than the practical operation of given powers, unless it be
the practical operation of ne^trietinns intended to control those
powers. It is a mortifying truth, that if the possession of power
sometimrs Icada to mischicvoua abuses, the absence of it also
acHnetinies prodnces a political debility, quite as ruinous in its
oonaeKjuencea to the prcat objects of civil jrovprnrnpnt.
5 221. It in proposed, tlicrt-fore, to go int^> a historical review
of the manner of the formation and adoption of the Articles of
Confederation. This will he. followed by nn exposition of the
general providians and dintributioiut of power under iL Ajid
this will naturally lead ua to a consideration of the causes of its
decline and fall : and tlnia prepare the way to a consideration of
the measuri'A which led to the origin and fmal adoption of the
present Constitution of the United States.*
§ 222. On the 11th of June, 1776, tJio same day on which the
committee for preparing the Declaration of Independence was
0)>pointcd, Congress resolved that *'n committee be appointed to
prepare and digest the form of a confederation (o be entered into
between these colonies ; " and on the next day a committee was
accordingly appointed, consisting of a memtjer from each colony.'
Nearly a year before this period (namely, on the 2Ist of July,
> n» Bnt Tolmiw cf tlw UdIimI Dutei Uw^ paUulMd \>f Bioren ud Dnuia,
eoaUiai k mtnuaiiTj rwm of ihr p^CMding* tn OMi^nM for the auUuknMiit «f tfaa
«<«M«nitlM, and ■!» «f the <qBniiit{<ni tm th» ralaUiibninii ot Dm OaaiUtnUaa «f
tlw failed 9t»tM. And tliB wheli pveccdiDgi an givra ■! l«j^ ia Uw Bnt *olOOM
«( tlia Semt Joarniili, ]niUl>h»d bj Od^Tm* in 1S2I, p. S6S. et «^
* Jonnula of 17T4. p. SOT.
lU
HISTORY OF THE CONfXDERATIOH.
[dooeu.
17Tn), Dr. FntnkliQ bsd submitted to Conf^iu ft skotch of arti-
cled of confederation, which does not, however, appear to have
been acted on. Thi»e articles contemplated a union imtil a
reconciliation with Great Britain, and, on failure thereof, the
confederation to bo perpetual.
I 223. On the 12th of Juiy. 1776, the comraittoe appointed to
prepare AHicles of Coiifudoration prc8ent«d a draft,' which waa
in Uic handwriting; of Mr. Dickenson, one of the committee, and
a delegate from Pennsylrania. The draft, so reported, was de-
bated from the 22d to the Slat of July, and on several days
between tJie dth and 20th of August, 1776. On this laat day
Congress, in conimiltce nf the whole, reportc^l a new draft, which
was ordered to be printed for the use of the members.'
§ 224. The subject B«ems not again to have been touched until
tJie ftth of April, 1777, and (he articles were debated at suveral
times between that time and the loth of November of the eamc
year. On this last day tbe articles were reported with sundry
amendments, and finally adopted by Congrx^ss. A committ«c
was then appointed to draft, and they accordingly drafted a cir-
cular letter, requcstinii; the States respectively to authorise their
delegates i» Coogreaa to subscribe the same in behalf of the
State. The committee remark tn that letter "that to form a
pormunent union, accommodated to the opiniona and wishes <d
the delegates of so many States, differing in habits, produce,
commerce, and internal police, was found to be a work which
QOtliing but time and reflection, conspiring with a disposition
to conciliate, could mature and accomplish. Hardly is it to be
expected that any plan, 1^ the variety of prorisiona esaential to
our union, should exactly correspond with the maxims and politi*
cal views of every particular State. Let it bo remarked, that
after Uie most careful ini^uiry and the fullest infonnation, Ihia
is proposed, as Uic bi-sl wliioh coubi l>e adapted to tlie circum-
stances of all, and as that alone which affords any tolerable pros-
pect of general ratification. Permit us, then [add the committee],
earnestly to recommend these articles to the immediate and dia-
|)aasionatc attention of the legislatures of the respegtire states.
1 Tb* draft of 1>T. rruikUn, wd (bit draft, nadantood to b« bf Xr. UAsBani.
ntn n«nt priai«4 nnUl the pnUlulian of the 8<N*ct JmumJ* b; onkr of OcngnM
tn 1S21, wIiciK llMjr wiU ba fmwd ondtr pafM 283 and 3M.
* SmM Jonmik 1774, p. Kt.
CH. n.]
OniGlK OF THE CONFEDEaATIOK.
165
Let Uipm he CAndidly rericwod under a soiuc of the difficulty of
Combiniug, in on<: general »yst«iii. tbc various dCutimcnU and
interogts of n continent, divided into ^ many Bovcrei)ni and in-
dependent oommunities, under n conviction of the absolute neccs-
nity of uniting all our councils and all 04ir strength to maintain
and defend our comn>nn liberties. Let them be examined with
ft liberality becoming brethren and fellow-citizens, surrounded
by the same imminent dangijrs, contending for the aame illustri-
ous prixe, and deeply interested in l>cing forever bound and con-
nected together by ties^e most intimate and indisaoluble. And,
finally, let tlicm be adjusted with the temper and the magna-
nimity of wific and patriotic legislatoni, who, while they are
concerned for the prosperity of their own more immediate circle,
arc vapublo of rising sujx'rior to local attachments, when they
may be iui^mputible with the safety, happiness, and glory of
the general confederacy."
§ 225. Such was tlio strong and eloquent ap|)eal made to tho
States. It curried, however, very slowly, conviction to the mindd
of the local legislature. Many objections were stated, and many
amendmcnta were projioRed. All of them, however, were rejuclcd
by Congress, not probably because they were all deemed inexpe-
dient or improper in tbemselves, but from the danger of seuding
the inslrunivnt back again to all the Htatcs for reeunsidoratioii.
Accordingly, on the 26th of June, 1778. a copy, engrossed for ra-
tificatiun, was prepftred, and tlie ratilicaXiuu begun ou tho tKli day
of July following. It was ratified by all the Htatvs, except Dela-
ware and Mitryland, in 1778; by Delaware in 1779, and by Mary-
land on the 1st of March, 1781, from which last date its final ratili-
cation to<^ effect, and was joyfully anuotmccd by Congrem.'
§ 22(1. In reviewing the objectiona taken by the various Statei
to the adoption of Uie confederation in the form in which it was
persented to tJiem, at least »o far as those objcctiona can be gath-
ered from tlie oflieial ants of tbtwe Statea, or their delt^eatot in
Congreaa, some of them will apj^iear to be founded upon a desire
for verbal amendments conducing to greater accuracy and cer-
tainty ; and some of them upon considerations of a more large
and im|H>rtaut )>earing upon the interests of the States respec-
tively, or of the Union.* Among tlie latter were the objections
> 8«nt JonrtMli, 401. 41S. 423, 1S4. 4M: S Kent's Coinm. IM. 1»7.
■ t ntk. Hitt. eb. 11. pp. IB to M; 1 Kent* Coinn. 1?T, IW.
166
HISTOBY OP TBE OONFEDEIUTIOK.
[booeo.
tofeen and alterations proposed in respect to tlio apportloninciiE of
taxes, and of the quota of public forces to be rni»vd amoii),' (1iq
States, bjr Maa»achuiu>ttii, Connecticut, New Jersc)*, and Pciut-
Sylrania.' There was also an abundance of jealousy of the power
to keep up a standing army in time of peaca'
§ 327. But that which seemed to be of paramount importance,
and which indeed protracted the ratification of the confederation
to so late a period, nras the alarming controvcrsj in respect to
the boundaries of some of the Stales, and the public lands held
hy the crown within thuHC rt-putod bouudurics. Ou tho one hand,
the great States. contended that each of them had an exclusive
title to all tho lauds of th« crown within ita boundaries; and
these boundaries, bv the claims under some of the ehiulers, ex-
tended to the Soulti Sea, or to an indvliiutc extent Into tho un-
cultivated western wildenieaa. On the other hand, tiio other
States as strenuously contended that tho territory, uiisettlcd at
tlie eommcnceiuent of the war, and claimed by the British crown,
which was ceded to it by the treaty of I'aris of 1763, if wrested
from the common enemy 1>y the blood and treasure of tJie thir>
teen States, ought to lie deemed a common property, subject to
the disposition of Congress for tlie general good. ' Rhode Is-
land, Delaware, New Jersey, and Uaryland iosistod upon aoioo
provision for establishing tho western boundaries of the States,
and for tJic recogiiitii.>n of the uosettted western territory as the
property of the Union.
§ 228. The subject was one of a per)>otualIy recurring interest
and irritation, and threatened a dissolution of the ooofederucy.
New York, at length, in February, 1780, passed an act author-
izing a surrender of a part. of the western territory claimed by
lier. Congress embraced the opportunity, thus ofTordcd, to ad-
dress the States on the subject of ceding the territory, reminding
them "bow indispenfiably necessary it is to estahliah the Federal
Union on a lised and permanent bssts, and on principles accepta-
ble to all its rcspi-ctivc memliers; bow essential to public credit
and confidence, to tho aupgxirt of our army, to the vi;?or of our
councils, and the success of our measurt«; to our trantiuillity at
home, our reputation abroad; to our very cxisteneo as a free,
> SfFRt JoiirMlt, STl, tn. Hi. 373, 8S1 ; 2 Pillt. QUI. A. t1. pp. 1« to 9S.
• SmM Jwuniits, 373, STS, 393: 3 IMk. Hiit. ob. 11, if. IB to SI.
• 9D*)l R.i;o, ptf Jajr, C. J.i S l>iUt. UbL cb. II, p|>. IB tsSS.
CH. II.J OBIOIN OF THE COKFEDERATIOK. 167
sovereign, and independent people. " They reconimeoded, with
eamestuess, a ceHsion of the weBtem territory ; and at the same
time they as earnestly recommended to Maryland to subscribe the
Articles of Confederation.' A cession was accordingly made by
the delegates of New York on the Ist of March, 1781, the very
day on which Maryland acceded to the confederation. Virginia
had previously acted upon the recommendation of Congress ; antl
by subsequent cessions from her, and from the States of Massa-
chusetts, Connecticut, South Carolina, and Georgia, at still later
periods, this great source of national dissension was at last dried ,
up.* (a)
1 Secnt JonnlB1^ i BepL, 1760, p. U2\ 1 Krat'i Cotnm. 1&7, 198; S IHtk. HiiL
oh. u, pp. i» to se.
* The hiatot; of thg« ccsnoni wUl be foimd in Uia IntrodactioD to tha Land Iawi
or the Duiied States printed b^ order of Congreai in 1810, 1817, and 1S28; and in
the first Tolnme of the Lawa of the United Statet, printed bj Bioran and I>iiane in
1816, p. 4S2, feo.
(a) Thi* antijeot li coiuddeTed tome- I. 2S7, d wj>. I|ie Hildnth, Hiit. of
wbatbjlb. BiTHmhiiLifeoflbdiaaD, U. S. ILL S9S- V
m
unrroiT or rni conrtDonTimi.
[bdokil
CBAPTBR m.
AKALraiH nr ntR Amcuft op oohpedibatiok.
I 880. In |iiini»iiioo of llio dmlKn ftlrcndy umounood, It JB
lifiw |ii'<i|KiiM>il to give nn aiinlynis of Uio Articles of CuiLf«dera-
tltMi, itr, •» ii»*y iin) ddiMmiitatvd Ui tliu IttKtruiiteDt it«eU, Ute
"ArtlniM of Coiifodumtlori anil Pcrjietual Union between the
Hliil<Ni," iw 1I117 worn finally adoptod by the thirteen States in
17HI.
I IIIU). 'lllR «tyli> of tJio confoilorncj- vm by the first article de-
I'Imrd lo li*« "Tbc Unit*-*! Stulua of America." The second arti-
v\v ilivlith<il IIihI ciu'Ii HtAto rotaitkod its sorereignty, freedcuQ,
Mid Inili'iHMidrncis utd every powur, junadiotion, and right
whioh WBn not by Ihl* confwloratioH rrprtttl^ delegated to the
I'lillt-d Sluli'iN lu Cuii)(niH aAimititeil. The third article declared
IhftI Ww SlulMi acvoniUy oiitemd into a lirm league of friendship
wltd t'aeh I'lliiT, fur tbeip oniiunon doffm-f, Iho •eciirity of their
liU<rtli<«, lUul titoir niittiiitl and gi'nerat welfare, binding them*
««i|v\<« to HMint iNioti ottwr ajTuinst all fonH< offensl to or attack*
umtto ii)>iiii llicu), or any i^f tlK'ni, on account of religion, soveT'
ptmity, (null-. <»r nivv other |ireloJic« vhateivr. The fourth utiele
«1i«i'liiivil lliHl tho (r^v iiihabitanta of each cA the States {ragaboadi
and f\i|itllvr4t fnuii jtKitioe oxer|>le<d) should Iw entitled to all the
)vrtxl)i-iis« vtt itw eitixena iu tho aeveral Statea; that the people
yi iMtoh State ah^Hild baw frvo ingma and r^ress to aad burnt.
fthy i4h<M- St«t<\ and atHwM «n/wr all the privikfes of tnde aad
tmwatwt^ iMtgMi to ttrt eanw dotna and nntrfctkaB as die i>-
klMttiltii UaI ItBiHtTCa iKwi inattm alMld, ■pw 4MMd ef tke
<ivMvttli\<i> vt Ihe St»t» Criioa wftkk ttier Sedt be delimvd ^; aad
OiM(WUIMt4ia«a«»tftikwaM b» 0tcb te AMb rf tte
tin A» iwMnbb M«fc «nd JtficU |iiwea*lngi of the
I HMiiiMnUvK fi *vert ^atlw ^atek
iSJA. ll«nil««ilMtt|NwvMi4l»1lH
«tr a fMH«*l CVn^reetA, 4(«lai4a$ dMI ddavMsAaaU •*!
CH. in.] AKJtLTftIS or THE ABTICLCS OF OOIfFEDlRATION.
169
meet in Congress on the first Monday Id ovciy year, with a power
reiieiTed to each State to recall an.v or all of the dolegates, and
to send otheni in their atead. No State vm to be repreBcntcd in
CongKss by less than two or more than seven ntemlwra. No
delegate was oliialile for more than three, in any term of six
years; and no dclcf^utc was capable of holding any oGlioe of eniol>
umimt undvr the United States. Bach Slate was to maintain its
own delegates, and in determining questions in Congress was to
have one rutc. Freedom of spc-vch and debate in Congress was
not to be impeached or questioned in any other place; and the
memliers were to be protected from arrest and imprisonment
during the time of their going to and from, and attendance on
Congress, except for trcaaon, felony, or breach of the [wace,
§ Zi± liy 8ul)«eqiicnt articles Congress was invested with the
sole and exclusive right and power of determining on peace and
war, unleiiR in case of an invasion of a State by enemies, or an
imminent danger of an invasion by Indians; of sending and re*
ceiling ambaBMtdora ; entering into treaties and alliances, under
certain liraitafionn as to treaties of commerce;' of establishing
rules for deciding all cases of capture on land and water, and for
the division and appropriation of prizes taken by the land or
naval forces in the sen'ice of the United States; of granting^
letters of marque and reprisal in times of peace; of appointing
courts for the trial of piracies and felonies committed on the high
seas; and of establishing courts for receiving and Gnatty deter-
mining appeals in all cases of captures.
§ 2i&. Congress was also in\-ested with power to decide in the
last resort, on apjx-al, all disputes and difFerenccs between two or
more States concerning Iwundar)-, jurisdictiun, or any other
cause whatsoever ; and the mode of exercising that autliority was
specially prescribed. And all controwrsiea concerning the pri-
vate right of soil, claimed under different grants of two or more
States before tlic settlement of their jurisdiction, were to be
finally debcrmined in the same manner, upon tJie petition of
eittier of the grantees. But no State was to be deprived of terri-
tory for tlte benctit of the United States.
> "Ifotratf nroOQMHOcabatllwBBtit^vluNbjttlMbgUUtlvapiMnrof thaSMtca
ditll he rartnltifil froM Inpodog Nuk Impoita and dnliot on krrignen u ibtir owd
prof]* v« Mli^fcUd to, or fram jxchibillng Ih* Pipoftotku «t iMporttlktn of anf
I «< gooda M esmaoltliM vbataotTsr." Art IX.
170
BCtTORT OP THE CONPRDERATIOK.
[buok II.
} 284. Congress was al^ invested with the sole and exctuBive
right nad \mwar of regulating the alloy and ralae of coin struck
by their own anthority, or that of the United State*; of fixing
tile standard of weiglits and measiirea tliroughotit the United
States; of regulating the trade and managing alt affairs with the
Indiann, not niembcra of any of the States, provided that tlie le-
gislative right of any State within ila own limits should not be
infringed or violated; of eatahlishing and r^ulating post-oflSces
from one Ktate to another, and esaeting po«t*go to defray the
ex|>ense8 ; of appointing all officers of the land forces in the ser-
vice of the United States, except regimuntat oflicers; of appoint-
ing all of&cers of the naval forcra, and commissioning all oflioers
whatsoever in the service of the United States; and of making
nik-s for the government and regulation of the land and naval
Corocs, and directing their operations.
§ 335. Con<;rL^8S was also invested with authority to appoint n
oommittcc of the States to sit in the recess of Congress, and to
consist of one delegate from each State, and other coininittees
and civil officers to manage the general aftnini under tlieir direc-
tion; to appoint one of their number to preside, but no petson
wag to sen'O in the office of president more than one year la the
term of three years; to ascertain the necessary sums for the publio
service, and to appropriate the same for defraying tlie publio
expenaea; to borrow money, and emit bills on the credit of the
United States; to build and equip a navy; to agree upon the
number of land forces and make requisitions upon each State for
ita quota, in proportion to the number of white inhabitants in
BOoh State, The Icfjislature of each State were to apfwint the
regim<-ntal officers, raise the men, and clothe, arm, and equip
them at the expense of the United States.
I 236. Congress was also invested witli power to adjourn for
any tJmo not exceeding six months, and to any place within the
United States; and provision was made for the publieatioa of its
journal, and for entering the )-oas and nays thoreon, when desired
by any delegate.
$ 23T. Such were the powers confided in Congress. Bat even
these wore greatly restricted in tlieir exorcise; for it was ex-
pressly provided that Congress should never engage la a war ; nor
grant letters of marque or reprisal in time of peaee; nor enter
into any treaties or alliances; nor coin money, or regulate the
CR. III.] AKALTHU OP THE AElTiCLES OF CONFEDERATION.
171
Taloe thereof; nor asccrtuin Uic suiua or expenses nccccsarjr fur
tbe defenoo and wolfure of the United Htntva; nur i-mit bills;
Bor borrow mcmc}' ou Uie credit of tlic Uiiited States; nor appro-
priate munoy ; aor ngrea upon the nuiiibor of resscts of war to be
built or purcliiutiHl, or the number of land or itca forces to bfl
raiaod ; nor appoint a comniauder-in-chicf of the arraj- or navy,
vhUm ttine Staltt thoulJ (WMiit to the Mmf. Atid no question
un any other point, except for adjourning from day to day, was
to be determined, except by tJie vote of a majority of Oie .States.
§ 388. The committee of the States, or any nine of them, vera
authorized in tlie recess of Congress to exetvi^c auch powers aa
Congi-css, with the assent of nine States, should think it expedi-
ent to Tcst tliom witlt, except such powers for the excreise of
which, by the Articles of Confedomtiun, tbe axseut of nine States
was r^uitvd, which could not he tJius del^^tcd.
§ 2:!0. It was further pntrided, that all bills of credit, moneys
Iwrrowed, and debts c^mtracted by or under tJic sutLority of Con-
gress before the confederation, ahould be a charge against the
United States ; that when land forces were raised by any State for
the common defence, all oflicx>rs of or under the mnk of colonel
should be apixiinled by the Icgifllatiire of the State, or in such
manner aa the State should direct; and all vncaDcics should be
filled up in the same manner; that all char^^s of war, and all
other expenses for the common defence or generul welfare, should
be defrayed out of a common treasury, which sliould bo supplied
by the several States, in proportion to the value of tlie land
within each Stale granted or surveyed, and the btiildiiigs and im-
provements tJicrcon, to be estimated according to the mode pro-
scribed by Coiigi-oss; and the taxes fur thut ijro)>ortion wer« to be
laid and levied by the legislatures of the States within tlio tiiDO
agreed opon by Congress.
§ 240. Certain prtJiibitions wero laid upon the exercise of
powers by ihe rpspectivo States. No St»tc» without the voiuout
of tho United States, could send an embassy to, or receirv an
embassy from, or enter into any treaty with any king, prinec, or
state; nor could any person holding any ofTico under tlie United
States, or any of them, accept any present, emolument, office, or
title, from any fi>roipn kinc;, prince, or state; nor could Cong«>sa
itself grant any title of nobility. No two States could enter into
any treaty, confederation, or allianoe with each otiier, without
\
172
BISTORT or TUB COKPKDESaTION*.
[book d.
the consent of Congress. No State could lay any iinpuata or
duties which might interfere with any then pruposcd treaties.
No vesseU of war were to be kept ap by any titato iu time of
peace, except dwrntsi necessary by Conprcsa for its dofi-ncc or
trade, nor any body of forcoa, esvopt such aa shuuld be deemed
rcquioito by Coogn-Ha to gnrriwm its forts, and necessary for its
defence. But every Btatc was required always to keep up a woll-
rt'jfuluted and diitciplined militia, sufficiently annt-d and ac-
coutred, and to Ije provided with suitable Geld-pieccs and tcntu,
and uniis and ammunition and cnuip equipa^^^. No State could
cu)^!)^- in war witliutit the consent of Cout^-ss, unless actually
invaded by enemies, or in danger of invasion by th« Indians.
Nor could liny folate grant commiiisions to any Khi|)S of war, nor
Icttcre of marque and reprisal, except nftor a declaration of war
by Congress, untesB siicb Stato were infested by pirates, and
then subject to the determination of ConKn^ss. No State Could
prevent the removal of any property imported into any Stitc, to
any other State, of which the owner was an inhabitant. And no
imposition, duties, or restriction could be laid by any Stato on
the property of the United States or of either of thcuL
§ '^4L There was also provision made for the admission of Ca-
nada into the Union, and of other colonies with the assent of
nine States. And it was Anally declared tliat every Stato should
abido by tlic determinations of Congress on alt questions sub-
mitted to it by the confederation; that the articles should bo
inriolably observed by every Stale; that (hf vnion thould iff- pi-r-
fjfettal; and that no alterations should be made in any of the
articles, miless agreed to by Congreaa, and confirmed by the
legislatures of every State.
§ 242. Such is the nuttatance of this celebrated instrament,
under which the treaty of peace, acknowledging our indepen-
dence, was negotiated, the war of the Revolution concluded, and
the union of the States maiutained until the adoption of the
present Constitution.
CH. IV.] DECUHK AMD FALL OF TUB CONFEDEKATION.
ITS
CFiAPTER nr.
DECUKB AKD FAU. OP TIIK CONrBDERATTOK.
§ S4S. Anv Buirej, howeTer Blight, of the fionfecleratlon vitl
iinpr««8 the tuind with the intriDsic dillicultioH which attended
the formation of its princiiui] features. It ia well known that
apOD thiw! importHrit points, touching thf common rights and
Interests of the several States, much diversity of opinion pre-
railcd, and many &uimut«d diBCUssions took place. The first
piriiB, as to the mode of votinir in Congress, whether it should bo
by Statra, or According tu wealth or ixjpulntiou. The second, as
to the rule by wliicli the expenses of the Union should be appor*
tioncd among the Slates. And the tliird, as has l>een already
seen, relative to the disposal of the vacant and unappropriated
lands in the «-c8tern territory. '{a)
§ 244. But tliat which strikes us with most force is the unceas-
ing jealousy and wntclifulticss everywhere betrayed in respt-«t to
the powers to bo conltded to the general government For this
several causes may be assigned. The colonies had been long
engaged in stnipifles agninst the superintending authority of the
crown, and had jtractically felt the inconveniencen of the reetric-
ttve legislation of the parent country. These struggles liad
naturally led to a general feeling of resistance to all external au-
thority; and these inconveniences to extreme doubts^ if not to
dread of any legislation not exclusively originating in their do-
mestic asHembliea. They had, as yet, not felt the importance or
necessity of union among themselves, having iM.'en hitherto con-
nected with the British sovereignty in all their foreign rclationa.
^Wfaat would \tc their fnte u BCparato and independent oommuni-
ic«; how far their interests would coineidL' or vary from each
Other as such; what wotUd bo the effects of tho Union upon their
) s PUk. HUt IS.
(«) Tacksr, Hiat ol V. 8., I. 311 ; Hildmb, Ilut. ef C. &, lU. S98.
1T4
HXSTORy op THE CONFEBEllATIW.
[book II.
dtnncstic peace, their territorial inltrrata, their external com-
merce, tJicir political uecurity, or their civil liberty, — were
pointfl to thom wholly of a »]}CCulativo character, in regard to
which variutm o[)iriiunB might be entertained, an<) vHrious and
even opposite conjectures lonncd tipun grounds apparently of
equal plausibility. I1icy were smarting, Coo, under the severe
BufTcringfl of war; and hardly bad time to look forward to the
future events of a peace ; or if they did, it would be obvioualy a
period for innre tmivjuil discussions, and for a )>etter undnnttand-
ing of their mutual interests. They were suddenly brought to-
gether, not 80 much by any deliberate choice of a permanent
union, aa by the nrceftsity of mutual co-opemtion and support in
resistance of the roeasurea of Great Britain. They found them-
selves, after having assembled a general Congrects for mut«ial ad-
vice and cncouraRemnnt, compelled by the course of events to
clothe that body with sovereign powers in the most irregular and
summar)- manner, and to permit them to assert the general pre-
rugutivca of peace and war, without any previous compact, and
saucttuncd only by the silent acquiescence of the people. Under
such circumstances each State felt tlut it was the true path of
safety to retain all sovereign powers within its own cnntrnl, the
surrender of which was not clearly seen, under existing cirrum-
slancca. to be demanded by an imperious public necessity.' (a)
§ 245. Notwithstanding the declaration of the articles, that
the imion of the Stiiitos was to bo perpetual, an examination of
the powers confided to Uio gvneral government would easily sat-
isfy us that they looked priucipally to the existing revolutionary
state of tilings. The pnuciiMil iwwcrs respected the operations
of war, and would be donuunt in timen of peaee. bt sburl. Con-
grew in peace was possessed of but a delusive and stuidowy
sovereignty, with little more Uian the cnpty pageantry of office.
> Dr. Rsib. ia ■palcgiiias l«r UimMmU «r IliB omfcdcratioM, luaoWmd, "Th«
coMMrMiod, toffiOta witli mart «t am State cooatUatlaaa, ww Ibiwal mi4«r vnjr
UUGirorablo ciretmiBbMtM. Wo h»d Jut «w«tyid tmn a cornpUit nwBwclty. A1-
tbMBgh wt mdcntaod iwtftctly tha pnndiilra «l libcf I?, yrt »(at U a* vin igncnat
of the fbrtn* uul Mmbinatioiu of pomr In rrixiblic*. Add to llita tlic BritUh tmy in
tb* hckrt of oar countrr, ipnadlng <l«ai>Utiun ifbtttrtr tl venl." I Amer. MiUEUm,
B. Sm«I» 1 Amr. UnioaBi, 370. 1%» II<tUi Amrrins Kfvww. (or Oct, 1637. ooa<
triMftMinsnirorMDMor tli«praiuiimtMnt«c(tlMoanfciIaitloa. AHl. [kM(^
(<■> 8m BlitHjr of til* CoBitUaUw hy CartH B. IL
CH. IT.] onCUNB AND FALL OP THE OONFl:OEKATIOK.
176
They w«ru indeed clothed with the authority of sending *nd re-
ceiving anibasMidoni ; of ont«ring into treaties and alliances; of
appointing coiirtD for the trial of piraciea aad felonies on the
high seas; of regulating the public coin; of fixing the standard
of weights and mcasiireit; of regulating trade witli the Indians;
of estalilishing postHjflicca.; of borrowiug money, and emitting
hills on the credit of tlie UuUid States; of ascertaining and ap-
propriating tlib sums necessary for defraying tlie public expenses,
and of dis[>08ing of the n'csteru territOQ'. And most of these
powers required for thoir exercise the assent of nine States. But
they pOMsestied not the power to raise any revenue, to levy any
tax, to enforce any law, to secure any rigiit, to regulate any
trade, or cron the poor prorogalivc of commanding means to pay
their own ministers nt a foreign court. Tliey could contract debts,
bnt they were withotiC means to discharge them. They could
pledge the public failli, bnt they were incapable of redeeming iU
Tliey could enter into treaties, hut every State in the Union
might disobey tliem with impunity. They could contract alii-
aneea, but could not command men or monry to give ihom vigor.
They could institute courts for piracies and folnnics on the big^
seoA, but they had no means to pay either the judges or the jo-
rora. In short, all i>ower9 which did not execute themselves
were at the mercy of the States, and miglit be trampled upon at
will with impunity.
$ 246. One of our leading writers addressed the following
strong language to the public:^ ** By this i>oliticat compact the
United States in Congrcsa" have exclusive power for the follow-
ing purpixies, wthout being al>lo to execute one of them. TTicy
may make and conclude treaties, but can only recommend the
observance of them. They may appoint ambassadors, btit cannot
defray oven the expenses of their tnbk-a. Thi?y may borrow
money in their oim nnmo on the faith of the Union, but eaniiot
puy a dullnr. TliL-y may coin money, hut they cannot p^irchose
an ounce of bullion.^ They may make war, and determine what
uuohcr of troops arc necessary, but cannot raise a single soldier.
In thirty thty may declare everifthin^, but do nothing."*
$ 247. Strong as this langn^^ may seem, it has no coloring
> 1 Amw. Hiu. 17S4, f. 370.
* Ungung* ^mSXj Mnm^ and «Ima«t Uratkal In ttywiltii, will b* toond in Ur.
jK}r'>l<ttvr, aiMmMdlotlMrmplBorKe'Tork. 1TS7 ; > Amtf. llmMm,BS*,BM.
176
HtSTORT OP THE COK PEDES ATIOM.
beyond what the naked trnth would jufttifj.'(a) Washia^
himoclf, that patriot without stain or reproach, speaks in 1785
with iinuaual signifioancy on the same subjoet. "In a word,"
says he, '^thu confcderution appears to mo to bo little moru than
a shadou' without the substance; and Congress a nu|^tory body,
tlivir ordinances buiu)^ little attondcd io."' The same senti-
mcntH may be found in many public documents.' One of Uie
most humiliating proofs of the utter inability of CongrenB to en*
force wen tho exclusive powers rested in it is to be found in the
arj^umcntativc circular, addressed by it to the sereral States, in
April, 1787, cntix-ating them in the most supplicating manner
to repeal such of their laws as interfered with the treaties with
foreign nations.* " If in theory," says the historian of Waahing-
ton, *' the treaties formed by Congress wore obligatory, yot it had
been domonslratcd that in practico that body was almolately un-
able to carry them into execution."'
§ 2-18. Tlic leading defects of the ctHifederation may be enu-
merated under the following heads: —
In the Tintt place, there was an utter want of all coercive
authority to carry into effect its own constitutional measurtts.'
This, of itself, was sufficient to destroy its whole efficiency, as a
auperintending government, if that may be called a goremment
> Mr. JnatiM PUtanon, [n HjpHoo ». Tb* United Stak% S Ddl. 174, afttriMMildiig
thit CongiM^ vein th* conMantioa, htd no coMdn Mtlwritr, lii, " tt^quUtiODa
i)tr«4d«id1*lt«r, aal«H tlMSUUl(|(itl»tnfM«i)uldlwbn>aght iotuaation jaad whaa
Ouejf mnv Ux ■■>»* niMd mm mj diBpnipittianoL"
■ I Manhall'i Uh of VMhingtcn, Si. Sea alw 2 Viik. lUaL 217 i Sorth Anur.
B«T. Out 1S97, pp. 340, ISI, SM, ftSA.
* 8t« 1 Anwr. HiMMm, SiG, 290, M4, 4S0, 447, 418. 449. The Pedtmlirt. Vtt. IB
to SI ; S Aran, ilateom, 883 ; M. S>5, Ac ; 8 Anwr. HuMiim, Mt« 19 1 U. fS ; Id.
SMioSM; [d.S43: M. S48, Ao.; Id. 849, Ac ; I Kcnt'i ComBi. SH.
* 1 AnuT. UDMom, SS!.
* C MtnluU't Lib «f Vfmhingbm, 68. * 1 JtffMwa'i Conwp. 91.
(a| Ur. JelTonan wm tit ofdaioo tlHt
Um MnfedcnUon rowtiwd powtn «f «o-
•rcion liy niWB*«l wUdi th» oVUffttioM
of the MTer*J Sutes might be atforecd.
' JtSinoa'* Work*, IX. 391. But m tnch
I tumm, iT poMtMcd, oonld only fa* «x«r-
dNd offdnic tb* atatao u SiUm, tlio
pociw of ocortiMi niut ntCMHrilj tw
mA u tndffKDdant notleu retart to
, iuid«r rfmUar cbcmniloaf a^ tlttt I* t« my,
tlw dii^y or MtordM of MiHIvy at aanl
foSDr^ UMicIfAvmndooaifiaMtiaBof |rn|>
nty, ill* bjlog of tHboigoco v|ioa omi-
nxtot or intcnonm^ kc ; ind tho rrty
txvituo of oBtli ooereive outliofitjr, witli •
tiew to enfam tlw otgMto of tba Dnloo.
woold almoit of ntwxHy tmhIi fa ita
orttikro>. 8m Lib ud Vomtfmimm
ofJunMliodolLU. 198.
/
CH. rv.]
DKCLIXK AMI) FALL OP THB CONPEDEBATTOS.
177
which poflKued no one Bolid altril>iit« of pon-cr. It has been
justly oboerred that "a govcmincnt atithoriied to declare wer,
hut relyins: on iiwlppemlont Htnt^-s for the means of proaeciitiiig
it, capalilc of contrai^liiig: dolltn, and of )>ledging the ptiblic faith
for thoir pajtncnt, but depending on thirteen distinct sovereign-
tics for the pruservatifm of that faiili, could only be niacued from
ignominy and cimtt-nipt by finding those aoverpigntiea adniinis-
t«rv<l by mt-n exempt from the pasHionii incident to human na-
turv."' That is, by supposing a caso in which all human
govcrnmcute would become uimcccssan-, and all dliferoneea of
opinion would beeoine impo»tible. In txutli Congress possenad I '
only the power of recommendation.' It dc{)cndcd aUop.'thcr upon I
the goo<l-vriIl of the Stat^.'s whether a measure should be carried
into effect or not. And it can furnish no matter of eurprise,
under 8uch ei reiiimtanees, that great diffiTi-nces of opinion as to
moasurei* should have existed in tJic legislatures of the different
States; and tiiat n policy, strongly supported in sonte^ sliould
hare been denounced as ruinmis in olbei's. Honest and enlight-
ened men might well divide on such matters; and in this perw
pelnnl cduttict of opinion the Htate mi^it feel itflelf jiiatilied in
a silent or o[:>on disreganl of the act of Congress.
§ 2-1!*. The fact corresponded with the Iheory. Even during
tite Revolution, while all lieartH and hands were engaged in tite
common cause, many of tJie meafturea of Congres* were defeated
by the inactivity of the States; and in some instances tlie osar-
cise of its powers was n!&ietcd. But after the iwaec of 1783,
such oppoHJtion became common, and gradually extended its
sphere of activity, until, in tlio expreseivo language already
i|UDted, "the confederatiim hccjime a shadow without tlie sub-
stance." There were no national courts having original or
a(i|>L'llale jurisdiction over cu«ca rcgunllng the pfiwcra of the
Union; and if there had been, the relief would ha>-c been but of
a very partial nature, since, without sonic act of State legisla-
tion, many of those powers could nut )x^ hrouglit into life.
§ 360. A striking illuslratiuu of thcs« rcmarlis may tie fwuid
in our juridical histor}'. The power of appeal in ]>rixe causes,
I E M>nkiir* Iir*«if Wukl^gton. 91. 8m ilw I Rmi'i Comm. 109 ; 1 EUiM'i
DtUlm, »8. 3M, 210. Sll ) HoHh Anar IUt. 0«t. IS^, pp. tt». SS7, «e. ; Tto
■ rtiltnli^t. Jici IS.
* TI.C Fnlcnlul. No. IC.
vot. I. — IS
ITS
HISTOET OP TIIK CONFEDEEATIOK.
[■ooEn.
&a an incident to the sovurcign powers of pouce and war, waa as-
serted by Congress after tlic most olabornto eons i deration, and
stipported bv tlie voice of t«u States antecedent to tlio rutification
of tlic Articles of Confederation.' Tlie exercise of thnt pow«r
was, however, resiiited by the Htate cnttrts, notwithstanding its
immcnso importance (o the pr«»en'ation of tlic rights of inde-
pendent neutral nations. I'ho confederation gave in express
tenns this right of appeal. The decrees of the court of appeals
Wflre ©qiially resisted; and, in fact, they remained a deJid letter,
until they were enforced by the courts of the United States imdor
the present ConHtitution.* (a)
§ 251. The Federalist speaks with nmisual enersy on this sub-
ject:* "The great and radical vioe in the con.4tnictinn of the
conff^eration is in the principle of legislation for States or gov-
emmonts in their corporate or rollective pjipa<;itics, and as oon-
tTadisiingiiighed from the individuals of wliom they consist.
Though this principle does not run through all the powers dele-
gated (o the Union, yet it porradcs and governs those on which
the efficacy of the rest depends. Except as to the rule of appor-
tionmeat, the UnittKl States bare an indefinite discretion to make
requisitiuiiH for men and money; but they hare no iiuthority to
raise either by rcfnilatiuns extending to the indiridualA of Amer-
ica. The consciguvncc of this is, that though in theory their
reflolutions concerning those objocla are lawa, constitutionally
binding on the members of Uic Union, yet in practice they are
m<*r« recommendations, which the States observe or disregard
at their option." Again: " The concurrence of thirteen distinct
aovorci<^tie8 is requisite under the confediTHtion to the complete
cxwution of every important measure that prociM^ds from the
Union. It has happened as was to hare been foreseen. The
mcasui-es of the Union have not been executed. Tlie <)elinqucn-
cies of the Slates have, step by steji, matured theJiiftelve* to an
extreme which has at length arrestt^d all the wheels of the na-
tionul irovemment and brought them to an awful stand. Con-
gress at Ibis time scarcely possess the means of keeping up the
1 Juunwla atCmgnm, Mh of Xndi. 177*. (Ui roL fip- St, <!& to M.
* Pinhallow r. Doann. 3 D>IL SI ; <.^na(i r. Jginiaji, 4 Cniich, S.
• Tlu Ftdtnlid, Nol is. Sm >ln 1 JiHutwm'i, Comqi. S3 ; PmMwit Modtm'^
Vmmk* et U*j, ISUt : 1 ftdnc'* Bhck. Ctmm. App. aota D. piimlm.
(«} Sra iiot« to t <1'> '"'*•
CU. IT.] DECUNR AXD FALL OF THE COXFIH^ESATIOK.
1T9
forms of admin iBtrfttion till the States can have time to agree
upon a more substantial siibBtitutc for the present shadow of a
federal gorenunvnt "
§ 252. A further illnstratjoD uf this topic may be gathered
from the palpable defect iu the coufi.'dcratiuii of any power to
give a wanctiau to its Iaws.> Cougress had no power to exact
oUnlienoe, or punish disobedience to its ordiuances. Ther could
neither impose fines, nor direct imprisonment, nor divt-st privi-
leges, nor declare forfeitures, uor suspend refractory officers.
There was in the confederation no rrprtK* authority to exercise
force; and though it might onlinarily lie implied as an incident,
the right to make such implication was prohibited, for e««b State
was to "retain every power, right, and jurisdiction not expre»My
delegated to Congress."' The consequence naturally was, that
the resolutions of Congress were disregarded, not only by States,
but by individuals. Men followed their intercHts more than
their duties; they cared little for persuasions which came with-
out force, or for reoommoudatiuns which ap[iealed only to their
consciences or their patriotism.^ Indeed, it seems utterly pre-
posterous to call that a government which has no power to pass
laws; or those enactments laws, which ore attended with no
Banctinn, and hare no penalty or punishment annexed to the
dianhedience of them.'
§ 2^'i. But a still more striking defect was the total want t&
power to lay and levy taxes, or to raise revenue to defray the
ordinary expenses of government* The whole power conlided to
Congress upon this bead was the power "to ascertain the simu
Decessory to bo raised for the ser^-ice of the United Stales," atul
to apportion the Cfoota or proportion on escli State. But the
power was expressly reserved to the States to lay and levy the
taxes, and of course the time as well as the mode of payment
was extremely uncertain. The eWls resuUing from this source,
even durinii the R<.'viilutionary War, were of incalculable extent;'
, Kod, but for the good fortune of Congress in obtaining foreign
> I lUaf I CMBm. SCO.
* Tb>*r«l(nlia.No.si.
* YkW'i tliiiDiu, 1 EUiot'i Deb. 84.
* The FodmlUt. Ho. IG | 1 K«t, Connt. 300. 901.
* Soela 1 D.B.U«*(Biarsn k Dune's nL). pfi. U tn f I. tbe pnCNdi^* of Ibo
old Can|[nM «n lht« iulij,«t. Sm abo The Fcdenlbl, Ko. Zl ; 1 Tuckn*! Black. Coinn.
' XU to 33« ) Tim FxUmtbit, Not. K, 33.
* 5 Uanl>U'« Ufe of WmUi«Uoi, M i I Kam. Usimuii, MS.
180
HI8T0BT OP TBE-CONPEDEBATIOK.
[book n.
lowis, it is far from being certain tliat tliey would not have been
fatal.1 Tlie princi|(le which formed the basis of tlie apportion-
ment was siiRicicntlv' objortionable, as it took a standard ex-
tremely unequal in its operation uj>on U»o different States. The
ralue of its lands was hy no mfUis a just reprCBeututivo of the
proportioniitc coutn but ions vrbieli eaeh >^tate ought to make to-
wards tbti dischar^ of llie common bunlens.'
§ 2^4. But tliis consideration dinks into utter in^igtiiGcance
in comparison with others. Iteiiuisitioos were to be nuidc upon
thirtc«n indcpi-ndoiit States, mid it depended upon the good-will
of the legislature of each State whether it would comply at all;
or if it did comply, at what time, and in what niaiuier. The
very tardiness of such an operation, in Uie ordinary course of
things, was sulficient to involve the government in ])erpetiial
financial embarrassments, and to defeat many of its best meas*
ores, even when there was the ntmont good faitli ond prompti-
todc on the juirt of the fitatcfl, in complying with the re<iui9ition8.
fitit ntany reasons concurred to produee a total want of prompti*
tudo on the part of the ■'^tatf-A, and, in ntimerou« instances, a
total disregard of the rc<)uit4ilion!i.* Indi^d, from the moment
that the peace of 178^ secured the country from the distressing
calamities of wnr, a gf^nera) relaxation took place; and many of
tiie States successively found ajiologies for Uieir gross neglect in
evils common to all, or complaints listened to by all. Many
solemn and affwting apptraln were from time to time made by
Congress to tlie States, but they were attended with no salutary
effect.* Many meoMires were devised to obviate the difficulties,
nay, the dangers, which threatened tho [Tnimi; but Uiey failed
to produce any amendments in the confederation.^ An attempt
wns made by Congress, daring the war, to procure from the
States an authority to levy an impost of five per cent upon im-
p(irted and prize goods, hut the assent fif all the States could not
be procured.* The troasory was empty, tho credit of tlie confed-
I S Pitk. niM. 1S8, ISS. 160. les ; ] TnckM'a Black. Comm. App. ttt. StS to 9M ;
1 IT. S. Uwi, 87. St.
* Tbe Fcdcnlbt. Hoa. 31. 30.
* S Pllk. nut. IM, 1ST. Sm kiM lt*ni»ilu n( rnttmon. J., In Byllon «. tT&SUd
SMa, 3 IMI. 171 ; 1 F.Iliat'i IMmtM. 906 ; Tb* I'olcnlbt. K<». 21. 31.
* Sm 1 U. S. Law* IBhmai A thmm'i nL 1811). from tage ST lo 54.
* 5 ManhtU* Ub of Wathitwton. pp. SS, 30, 37.
* S Uanhall'a UU «d Wuhio^loii. 37 : Jooi. of Cnacrttn, Id Fob. 1781. ^ 9» i U.
l«!h D«. 1788, p. »5 J I.L asth April. I7BS. pp. 184, 803
CB. IV.]
DECUKG AKD PALL OF TBS CONFEDERATION.
181
cmcy WR8 Buiik to a Invr «)>li, the public burdens vera increaAinfr,
and Uie public faith wait prostrate
§ 266. Th«ite general reniarkt) may be easilj rrrificd by an ap-
peal to the pulitie acts and hi.ttorr of the limes. Tlio cluee of
tlio Revohition, iutlcftend^nt of the enoniintis lo«geg occasioned hy
the excessive issue uod circulation, nnd oonaeqitent depreciation
of paper money, found the country burdened with a public debt
of upwards of forty-two milliuiis of dollars ; ' (a) eight millionH of
which were due for loans obtained in France or Holland, and
the remainder to our own eitisenE, and principally to thoae whmie
bravery and jtutrJotism hud saved their country.' CongroaB, con-
scious of its inability to discharge even the interest of this debt
by its existing means, on the ]'2th of Februun,-, 178S, resolved
that the ci«tablishiu«nt of permanent and ade(|iuitc funds or taxes
or duties throughout tlie United States wns indispcnsablo to do
justice to the public creditore. On the ISth of April following,
after much debate, a resolution was passed recommending to the
States to Test Congress with power to levy certain S]>eciried diilies
on spirits, wines, teaK, pepiier, sugar, molasses, oocns, and coffee,
and a duty of five per cent ad tfalorrm on all other imported
goods. These duties were to continue for twenty-liv« years, nnd
wero to be applied solely to the payment of the prineip«l and
interest of the public debt, and were to be collected by oflioers
ettosea by tlio Slates, but removable by Congress. The States
were further required to establish, for the same time and object,
other reremies, exclusive of the duties on imports, aecording to
tlin proportjou settled by the confederation; and the system was
to tttlte effect only when the consent of all the States was obtained."
I 256. The measure thus adojited was strongly urged upon the
' Tbe wMe exfiitm of the nur vu mllmaUil M ISS inilUaiM cl dolbn, iaetudinft
iha apvcii) talno or all tcouuiy bUlaaftliE UiiiiHl Stains mliicalacMrdiiiK toUi*Mal«
«f dqirwiatioti ntabliabnl liy Cougma. 3 Pitk. HisL ISO.
* i P\ik. HItl. ISO ; S Hanh. Uh el Wiuli. 34.
* iVnk. UiaL ISO, ISI : i HBnk.Llf(>arVi'wli.)S.K;Joiinial«cf CongrM, Illh
F*ti.i;83,p.tM; td. 3Dtb Uanh. 1783, pp. ISl. IST.IU, IW; U. ISlti April. 1753,
fp. 185 to I». Ad BtUrapt «r>i n)|jH>iiiFn It; nMde in C^togiTM l« inwaic auUiorilv
to levjr th« luMlor Ui* ruloii arjiantolf rron otW Slate Uxm | auil to make tliicol-
iMtMiliaUstoin tiM<Tiiii«n by Uw tiMMNTorUadapaty, nadar thedintftionoTCon-
umn, Bat the mitmn Guled ol trctf Ting tlw rata ef Con)[i*M Itattf. S Uaiih. Lift
U WaablngtoD, SS, note
^) Skwtt, Lifoof HadiMn. lU. 73.
182
H13T0nY OP THE COKPBDBUTION.
[mokh.
states ID an address, drawn up under the aiiUiority of Cuugress
by Kom« of our most dislingiibhed statesmen. Whoever reads
it, OTCU at this distance of time, will be stnick with tlie force of
its stj-le, tlie loftiness of Its sentiments, and tlie unansw«i-able
reasoning, bv which it sustained this appeal to thn justice and
patriotism of tJie nation.' It was also recommended by Wash-
ington in a cireiitar letter addressed to tlie governors of tbe sev-
eral States, availing himself of the approaching resignation of
his public command (o impart his farewell advice to bis country.
After having stated that there were, in his opinion, four things
nasential to the wellbciug uud existence of the United States, as
an independent power, — namely, 1. An indissolublo onion of
the States undi-r one Federal head; 2. A sacred regartl to public
justice; 3. Tlic adoption of a proper peace establishment ; 4. The
provalenoo of a pacific and friendly disposition of the people of
the United States towards each other, — he proceeded to discuss
at large the fimt three topics. The following paasago will at
one« disclose the depth of bis feelings and tlio extent of bis
fean: *'UiJess [said he] tlie Htates will suffer Congn-ss tocxer-
vise those [irerogalives they are undoubtedly invested with by the
Cunstitulion, eren'thing must Tcry rapidly tend to anarchy and
confusion. It is indispensable to the happiness of the individual
StatM that there should Iw lodged somewhere a supreme power
to r^iulatu and go^'cm the general concerns of the coufederated
republic, without which the Union cannot bo c^ long duration.
There must be a faithful and pointed oontplianoo on the part of
overy ^laie witli tlie late proposals and demands of Congress, or
the most fatal eonsequenoes will ensue. Whatever measures have
a tendency to dissolve the Union, or contribute to violate or
lessen tlie flovcreipn authority, ought to be considered hostile to
the liberty and independence of America, and the antlioni of them
treated nfconlingly. And, lastly, unless we can be enaldod by the
coneurreuce uf the Statos to participate ol the fniitA of the Rev-
olution, and enjoy the essential benefils of civil society ondcr a
(orm of goveniiiii^'nl so froo and uncomipted, so happily guarded
against the danger of oppression, as hue been devised by the Ar-
ticles of Confederation, it will bo a subject of regret that so much
blood and treasure have been lavislied for do purpose; that so
> 1 IHtk. Hbt ISl. 1S3 ; S Mmnk. LiU at WmIi. S3, 38, ».
CB. IV.] DBCLIh'B AKD PALL OP TOE 00NPtU)EBi.T10N.
163
manj •iifTcriiigs hare been encountered without cooipcitsation ;
uid that 80 many sacrifieeit have bix-ii made iu vaiit."*
$ 257. Notvitlistanding the wanntb of this appeal and tlie ur-
gencf of the occnAioii, the mewiire was never ratified. A jeal-
omy began to e:[i.it Ix^twcen the State and fteneral goTemnvoDtH;'
and the State iutercsta, aa might naturally be presutoed, pre*
dotninatud. Some of th*' States ada])ted the wsolution aa to the
iinpuHlft with promptitude ; others gave a slow and lingering aa-
siiit ; and uthera held it under adviaement' Id the mean time,
Oongn^iM was obli^^ to relr, for the immediate supply of the
treasury, upuu rcquiftitioiui annually made and annually n«K-
lcctc<L The requiatliona for the payment of the interest upon
the domestic debt, from 1T82 to 1786, amounted to more thaDj
six millions of doilara; and uf this sum up to March, 1787,
about a miliioa only was paid;' and from November, 1784, to
Janiiari', 17^<>, four bundre<i and eiglity-thre* thoutMtnd dollani
only had been received at the national treasury.* But for a tern-
poraiy loan negotiated in Holland there would have i>cen an utter
prostration of the government. In this state of thinga the value
of the domestic debt sunk doim to about one tenth of ita nominal
auiuuiit.^
§ 268. In February, 1786, Congress detemnined to make an-
other and last appeal to the States u|>on the subject. Ilie rejiort
adopted upon tJiat occasion oontikins a melancholy picture of the
state of the nation. ** In the course of this inquiry [said the re-
port] it moot elearly appcarf^d that the rec|i]iaitiona of Congreaa
for eight veal's past have bei^n so irregular in their operation, M
uncertain in their coltection, and so endently unproductive, that
a relianee on them in future, aa ft aource from whcnif immeya
are to bo drawn tu disvhar^ th« onuiagenients of the coufMera-
tloo, derinitu as they arc in time and amount, would bt no Uu
ditkonorahU to llie utuJtrttaHtiinift of thoK who enUrtatned sutfj
> E M*nh. UholVaih. IS, 47. 48; S Piik. HM. SIS, Sir. Sm»1m lAnwrlcui
HiuMim, IfiS la IU, Hr. Fftukney'* tpotdt. S« aUo 1 K«nl, CsUM. Lact. 10, pp. Sit
li)S47(ftl«JlUnB).
* JaunuU* of Cmwnw, int, p. S4. Sm dw S AnmlMii Momvh. 113. Tha
lUfott orxaauntUmofCaagnMoriholith «f Ttttway, 175S, oanuin* • daUlbd
■titmimt o/ Uw uta «f tb* 8UMb nlaltTe U Uw nsMOM. Joor. oT VtMfftm, IIH.
p. It; I AmM. MaMinB,!tSli S Abmt. Uaumm. 153 la ISO.
* S r-itk. KUL lU. « ft HudL Life of WMb. XL
* ll'iUi. Ilia. I6S.
184
HISTOItT OP THK CON FED £B ATI OH.
[BOOK n.
confidence, than it would be daa^rous to the voUsre aiid peace
of th« Union. " " It has become the duty of ConRresa to d(M.-lare
most ospUcitly, thut thu crisis has arrived, when the people of
these Uuited States, by whoso will and for whose benefit the
fedcrul government wua instituted, miuit decide whether they
will supfMri their rank us u nation, by maintaining the public
faith at home or abroad ; or whether, for want of a tltiurly I'.ter-
tion in cstablii^hiiig n general rovciiiie and thereby giving etrciigtb
to the confederacy, they will liaxard not only tlic oxi»lcnco of the
Union but of thows great and iiivaliutlde privileges for which
they have eo arduously and so honorably contended. " ' After
the adoption of this report, three States which had hitherto
LStood aloof came into the nieaiiiirc. Xew York alone rcfuHml to
comply with it; and after a iii<u«t animated debate in her legis-
lature, she remained inflexible, and the fate of the measure was
tflcaled forever by her solitary negative."
_ 250. Independent, however, of this inability to lay taxes or
collect revenue, the want of any power in Congress to regulate
foreign or domestic commerce was deemed a leading defect in
the confederation. 'Iliis evil was felt in a com)>arativety slight
legrec during the war. But when the return of jKaoe restored
the conntry to its ordinary commercial relations, tlie want of
■ come uniform s\'stem to regulate them was early jwrccived ; and
lie calamities which followed our shipping and navigation, our
domestic as well aa our foreign trade, convinced the reflecting
that ruin impended upon these and other vital interests, unless a
national remedy could be devised. We accordingly find the
public papers of that period crowded with complaints on thiii
suhjtM^ It was, indeed, idle and visionary to suppose, that
while thirteen independent States possessed the exclusive power
1 JMniiita oT CW«S 1730, pp. M to S6 ; 1 Amer. KmniiN. 3$3, to. The Com-
niltM wbo inkd« >)ie Report wne Ur. Kin^ Mr. PinclcDcy, Mr. Kcut, Hr. Hooroe,
ud Ur. P*tlit.
* aPitk. HkL lU. 133:BUM«h, Ufi; of WMliInKUw.M. et.131i 1 Tuck. BIm^.
A\^ lis. Tha *p*«ch lit Cnkmsl riainiltiiB, titra in tho ItisUtlnuB of Vet Yotfc, ia
FtJnuKTf. 1787, conlaiu* • vary pMTfffuJ arxiuiient in raror of tli» impoM i ukd k ilati^
niBiit of Ike cxUvt to which «Mh of tk> &Ut«* hul«ainpli«l<'itharRrt»Hltliat<i|«!)a-
tionnnrCoiigraM. [>nrili||th*panfln ynt*, be my%, Krw H>nt|iilutv.IIoirt)iCaivltiia.
tioaA Cuntia*. (nd Owon^ had paid bntliitiK ; Onanwtkiil «tid D>Ur>rv, abnot one
llilid ; llMMtchtuettn, Bhoia Uhuid, Mid Muryluid, aboot ou* half ; Vir^iila. Ihrao
cniiB : P<Bn«y1*aiua, mm- tba «bola i aad He* Yotfc, mon than btr qaoU. I Amer.
CH. IV.J DKCUHB AND FALL OP TRB CONFEDERAnOK.
185
of regulatinjf coramprc*', thflre cwild bo found any uniformity of
HVHteiD, or any lisirmouy and co-oiwi-atiou for the general welfare.
Meaflur«8 of a cummcrc-inl nature, which were adopted iq one
State from a sombc of ita own intert-HtH, would bo often counter-
vailed or rejected by other fjtates from similar motives. If one
State shiHild deem » nangation net favorable to ita own (growth,
the eflicacy of such a inoaaure might be defeated by the jealousy
ur poller of a m-i^hboring State. If one should levy dulien to
maintuin ita own frovemmcnt and rt-jiourccs, there were many
temptations fur its neighbors to udujit the n^ittcm of free trade,
to dnw to itttelf u larger tiliaro of foreign and domestic commerce.
The agiricultural Htatefl might easily suppottc that they had not
an C({Mal interext in tho restrictive system with the naviguting
State*. And, at all events, each State would legislate according
to its estimate of ita own interest)*, the importance of its own
prodtKts, and the local advantages or disadvuntagcs of its posi-
tion in a ]>olitieal or commercial view. To do otherwi»« would
be to aacrilino ita immediate interests, without any adei^uale or
enduring consideration ; to legislate for others and not for itself;
to dispense blessings abroad, without r^^arding the security of
tfaoftC at homo.'
§ 200. Such a state of things nec«)«arily gave rise to serious
dissensions among the Slates themselves. The difference of
regulations was a perpetual source of irritation and jealousy.
B«al or imaginary grievances were multiplied in every direction;
and tlius State animtjsities and local prejudices were fostered to
a high degree, so as to threaten at once the peace and safety of
the Union.' Like evils existed in our colonial state.*
$ 261. These evils were aggravated by the situation of our for-
' N(W Jmej Mrlr Mt Ihu wtDt of a |nwrr, in Cawgrwii lo n^Iala foniga oom*
mem. and mile it ona of bcc ot^mlions t» MlopUag UiB Attidn of Caottdtntkn, la
hor NjmMnbitiiM l« Oomgnm. fi Piifc. Hut. 33, St i t Swret Jonra. 3f ft ; The PkI-
•nOrt, Kd. 39.
* 3 Filk. HUl. in, 214, !15 ; 1 Am*r. Mujtaat. 27% 27S, !S1, 2SS, SS8 : The
r«l«nlil^ NcL S3 : 1 AiMf. Mua. 13 to 1« ; S Ann*. Um. 9W to 3S» ; TI» FedtnIK
Xo. r 1 I EUioc'i PcUtc^ n : 1 Tncktr*! BUek. Omtm. App. 1S9, SIS. 2t». Ham.
TurgM, tb* coB>f4ra11cr.|^ncraI of i)m Anuice* nf Ftbdc*, aoMnn nthtr «nvn la oiu
Utiou] poUcT, (ib<Mv«l, llwt la lli« arrenl SMm " one fiml principk U eatiUiibfil
in n^itl to irapmti. Each Stata b rappoanl U b« at libsrly to tax itwlf at (dniuut,
and to lay ita laiui apon ]Kt«o«^ oonnnnpUoni^ nr bnpMiatMiiu i that ti to mj, b
»rtel9mi»UrtdeB»lraryUtiiato/«llitrSUIiu.'' I Aniar. llainim, IS.
■ SOtahaB'i HiiL ^px. 4*8, IIW.
186
HiaiOBT OP THE OOKFEDEBATIOIT.
[BOOKH.
eign commerce. During the war, o«r commerce wn* nearly an-
nihilated hj the superior naval power of the enemy; and the
return of poace enabled foreign nations, and vspociuUy Great
Britain, in s j^reat measure to monopolize all the lx.-»ufits of our
homo trude. In the (inst piucv, our unvi)ititiuii huviiig uu pro-
toctiun wua unable to cdki^ iii competition with foreign ghips.
tn the next pltioe, our siipplica were almost altogether furuished
by foreign iniporter8 or on foreign account We were almost
flooded with foreign mauufactures, while our own produce bore
but a reduced price' Jt was easy to foresee that such a state of
things must soon absorb ail our means, and as our industry had
but a narrow ftco])e, would soon reduce us to absolute poverty.
Our trade in our own ships with foreign nations was depresaed in
an equal degree; for it was loaded with hcitvy restrictions in their
ports. While, for inalance, British sliipti, with their commod-
ities, had free adniission into onr porta, American Bhi|is and ex-
ports n-cre loaded with heavy exactions, or prohiliitod from entry
into Uritish porta.^ We were therefore the victims of our oa-n
imbecility, and reduced to a complete subjection to the commer-
cial regulations of other countries, notwithstanding our boasia of
freedom and independence. Congress had ixivn long sensible of
the fatal effects flowing from this source; but their efforts to
vard off the misehiefs hud b<>eQ unBUcccsHfuI. Being invested
by the Articles of Confederation with a limited (>owor to fonn
commereiu) treaties, they endeavored to treat with foreign pow-
om upon principles of reciprocity. But these iiegotiuliniis wore,
as might be anticipated, unsucoossful, fur tl>e parties met upon
very unequal terms. Foreign nations, and especially Qreot
Britain, felt secure in the poascssion of their present command
of our trade, and liud not the least induoemctit to part with a
single advantage. It was further pressed upon us, with a truth
equally humiliating and undeniable, that Congress possessed nu
effectual power to guarantee the faithful observance of any oom-
mCKial rej^ulations ; and there must in such cases be reciprocal
obHgutious.* "America [aaid Waahingtonj must appear inarery
1 S Hanb. Uln at WadtingtaB, «9, 72, 75, 70, SO.
• I Tuek. Bhnk. App. 167, t» ; 5 Manb. Uh of W«.li. 77. 78 1 « Ptlk. HW. ISC
t» IBS i 1 Anvrr. Mmniid. SS2. SSS i a Ann-. Uomiw^ SSS to 27« ; Id. S71 U> SfS ; S
Asm. Hvmmm, »l laU7. 542 ; Herth AnMrima lUriew. Oct. tiS7, fju S49, 357. ISA.
* SHankLifeof Wuh.7l,T3;TS; S Fitk. Uut. ISII, IK) ; » Asm. MoKnna, «t
81, 6S.
CH. IV.] DECLINE AND PALL OF TBI COKPKDEEATION.
187
contemptible point nf view to thotw witli whum she una cndcaror-
ing to form commercial treaties without poesessing tlic iuv«n& of
carrying them into effect Thcjr must sec and feel that the
Union, or the States individually, are Rovereign, as \>Qnt giiita
their purpoeea. In a word, that wo arc a nation to-day, and
thirteen to-morrow. Who will treat with us on auch terms ? " '
§ 262. The difficulty o( enforcing even the obligationa of the
treat}- of peace of 1783 waa a most aorioua national evil. Great
Britain made loud complaints of infractions thereof on the
of the several Slates, and demanded i-edreaa. She refused
'on account of theao alleged infractions to surrender up the west-
eni ports according to the stipulations of that treaty; und the
whole confederacy was coiiaecjuently threatened with the calam-
ities of Indian depredations on tho whole of our weslcra borders,
^id was in dan)^-r of having Its public peace subverted through
its mere inability to enforce Uio treaty Btipittatious. lite cele-
brated ftddre»» i)f Conj^rvss, in 1787, to the seroral States on this
Nubjeet, is replete with admirable roisoning, and contains melan-
choly proofs of the utter ineflicicncy of the confederation, and of
the disregard by the States in their legislation of the provisions
of that tivaty.>(a}
§ 268. In April, 1T84, Congress passed a resolution requesting
the States to vest the gi^neral guveniinent with power, for fifteen
years only, to prohibit the importation and exportation of goods
in the ships of nations with which we had no commercial treat-
ies; and also to prohibit the subjects of foreign ilatioiis, unless
authorized by treaty, to import any goods into tJio United States,
not the prodoce or manufacture of the dominions of their own
BOrereign. Although Congress expressly stated, that without
such a power no reciprocal ad^nLntngea could be acquired, tlie
proposition K-as never assented to by tlio Htates; and their own
Cotutervailing laws wcro oitlier rendered nugatory by the laws of
> e Hank LUb nf Wuh. 73 1 North AnNtkan TUiUm, OdL 1837, jip, 357, 2» ;
' Xtchnaii'i Coll. of BtforU, f. SS.
* Jnurnib of CSMwna*, April 13. 1TS7, p. 3t; lUvl* m CoMllMlka, An<. 3;
,p.8l& It wu ilnwn ap bf Mr. Jaf.tbon SecivUr]t<d FarrijiB ASun,Md««i anial-
kanaiuly kdoftod hf Co^ctm. It howtVM' fUlod of il> otjfst. And tli* tmtf <>( 17S3,
^•o Gu M k rmptcUd BrflUi doliU, ma D«T«r UtMiilly «xe«itnl uDtU i/tn tbs tO/^p-
Um or Uiu CoDHlitiltloD of Uia CniWd 8UU«. Sf* Wan ». UylUoi. 8 DalL B. IW |
HopUa* K B«ll, 8 Cnuck. 4H.
(a) Bit«^IJfaiiriladiMH,ll.lO.«li^
1S8
BIffrOBT OF TUK CON'FKSKELATION.
[book II.
other States, or WAi-e r<>pcal<!<! liy a regard to their own intprestfl.'
At a still later period a resolution was moved in Oon}7r«tui, rec-
ommending it to the States to veet in the geiKral giovenuneot
full authority to reflate external and internal commei-ce and to
impose such duties as mi^ht bf ntx-ctuiurv for the purpose, which
shared even a more mortifying (ate; for it waa rvjcoted iu that
body, although all thv duttc-s were to be coll«ct«d by and paid
over to the States."
§ 26i. Various rcaaona concurred t« produce th«ao oxtra-
ordinury results. But thv leading caiuo was a growing jcaloiiHv
uf the gt;ueral guvi-rumcnt, and n more dovut<.-d attacliiuent to the
local interests of the States; a jealousy which soon found its
way even into the councils of Congress, and ener^'atcd tJie Utile
jKiwcr which it was yet suffered to exert One memorable in-
occurred, when it was expected thai tlic British garriflons
rould surrender the western pottts, and it was thought necessary
'to provide some regular troops to take possession of tJiem on the
part of America. The power of Congress to make a requisition
on the Slates for this purpose was gravely contested; and, aa
connected with the right to borrow money and emit hills of credit,
was asserted to be dangerous to liberty and alarming to tlie
States., llie measure was rejected, and militia were ordered in
their stead.*
§ 265. There were other defects seriously urged against the
confederation which although not of such a fatal tendency aa
those already cnuiiicnitcd wore deemed of sulVicient importance
to justify doubts as tu its efiieuey ax a lioiid of tmion or an endur-
ing scheme of goreninient It is not ncocaaary to go nt lai^
into a consideration of them. It will suffice for the present pur-
pose to enumerate the priucipal heads. 1. The priueiple uf
n^ilating the contributions of the States into the common treas-
iiry by quotas apportioned according to the vnlue of laiidH, which
(as has tfcen ali-eady suggested) was objected to as unjii»i, lui-
equal, and inconvenient in ita operation.* 2. The want of a
mutual guaranty of the State gorcntmcnta, so as to protect them
against domestic insurrections, and usurpations deatnietive of
) 1 r^tk. Hilt 1»S ; 8U*nfc.Lihi)rVMh.ra.
1 G M*n>b. Ufa of WBtLiBStOD, 10, 81.
* 5 itnnh. tit* at WaiLiestno, Apf>. Dot* ].
* Th< Ftdmliil, Mo. 31 i S Abk. Ummid. tS. M, M.
CR. IV.] DECLINE AND FILL OP TBE COXFEDERATION.
189
their liberty.' S. Th« want of n direct power to raiae armies,
which wat) objected to as iinfricndly to rigor and promptitude of
action, SA well an to ecnnoRiT and a ju8t diatrihiition of the public
burdens.' 4. The i-ijiht of equal finffrage among all the StateR,
so that the leaat in point of wealth, population, and meana atood
equal in the scale- of repvpsentntion with thuso which were the
Inrgi.'flt Prom tliia eircumstanix' it might, nay, it must happen,
that a majority of this Stutca, constituting a third only of the
Jieople of America, eutitd control the rights and interests of the
other two thirdn.* Nay, it was constitutioually, not only {Kiwi-
ble, but true in fact, that even the votca of nine States might not
comprehend a majority of the |>eoplo in the Union. The minor-
ity, therefore, po«»eii«ed a negative upon the majority. &. 'Die
organization of the whole powera of the general government in a
single assembly, without any separate or distinct distribution of
the executive, judicial, and legislative functions.* It was ob-
jected, that either the whole superstructure would thus fall, from
ita own intrinMc feebleness; or, engrossing all the attributes of
aovenjignty, entail upon the country a most execralde form of
government in the shape of an irresiKmsible aristocracy. 6l The
want of nn erelvnve power in the general government to issue
paper money, and tlins to prei-ent the inundation of the coimtry
with a irtse curreney, calculated to destroy piiMie faith as well as
private morals.' (<•) 7. Ilie too frequent rotation required by the
confedcmtion in the office of niemliei-s of Oongreiwi, by which the
advantages resulting from long exjterience and knowledge in
the public alTairs were lost to the public councils.* 8. TIio want
of judiciary power coextensive with the powers of the general
government,
§ 266. In respect to this last defect, the language of the Fed-
eralist ■ contains so full an exposition that no further comment is
required. **Laws are a dead letter without courts to expound
> The FnlenlM, Kn. 31 ; 3 Am*r. UoMUM, n, 45. ,
» The FolwrfW. No. 39.
( The Fcdmilkt. Ka. S! ; 1 Amw. Huma, «7fi ; S An«r. Uiurani, 62, M.
* The raltntli*), X*. IS { I AaMT. MuMU. 8, » : Id. 273 1 9 Anw. Uuaeun, 82,
ail ; ] Kmt-t Cm,». LraL 10, p^ SOO (M adlL p. 811).
* 1 Anwr. Uiunini. S. « ; Id 343.
* I Abmt. HmmiDi. S, 0 ; 3 AoKf. Haaeani, OX M-
' The PedmlUt, Ko. 22.
<•) 8n Vn Bvtn, Politkal Putie*^ BS ; Lift of auaaa Adw^ U. 4M
IflO
amOBT OP THE COXFEDEilATlOS.
[book n.
aiid ddine their troe mmuilng oud opt-rtttion. Tho treaties of
Ihv United Slates, to have anj force at all, muftt bo couHidored
u part <d the law of the land, llieir true import, oa fur tm ro-
Bpects individuals, muat, like all other iawti, l>e n8««rt»(iiud by
judicial detonniaationB. To produce uniformity iu tliese dcter^
, minationa, they ought to be nuhmitted, in the last resort, to one
snprenic tribunal. And this tribunal ought to be instituted
under the same authority which forms the treaties tbeniiiclves.
These ingredienta are both indispcnsublc. If tliore in ia each
State a court of final juritultcliuii, tliure may be ait many differ-
cnt linal dctenni nations on the aamo poiut as there are courts.
There are endless diversities in (ho opini(>nft of men. We often
see not only different courts, but the jtid(^-« of the same court
differing from each other. To avoid the confusion which would
unavoidably resnlt from tho contradictory dccitiioiut of a number
of iadepcndcnt judicatories, all nations tutvo found it neocasary
to establish one tribunal paramount to the rest, )>oafte88ing a gim-
^•ral superiDtendence, and authorized to aettio and declare, iu the
I last resort, an miiform rule of justice. "
§ 267. "This ia th« mure necessary where the frame of gor-
cmmont is so compounded that the laws of the wtiole are in
daniicr of being coatraveacd by the laws of the parts, Ac. The
Ureatic« of tho United States, under tiie present cuufodemticMi,
arv liable to tho infractions of thirteen different legislatures, and
as many different courts of Gnal jurifldiction, acting under the
authority of theso Icgislaturca. Tho faith, the reputation, the
IOC of tho whole Union, are thus continually at tho mercy of
the prejudices, tbo passiouis and the interests of civcry member
^ of which these arc composi-d. Is it jMKUtible, under such eircuoi-
ttances, that foreign nations can cither respect or confide in such
goromnient? Is it posslblt; that the people of America will
ongor consent to trust their honor, their happiness, their safety,
<m so precarious a foundation ? '* It might have hcen added that
(hi" ri)ihta of indft-iduals, bo far as thny depended ujwn acts or
authorities derived from the confederation, were liable to the
same difficulties as the rights of other nations dejiendcnt upon
treaties. '
§ '2fiH. The last defect which seems worthy of cuumeration la,
that the confmlenilion never had a ratification of the PSOPL^
> Sk CUdmfaa *. Otoigm. i UalL B. il0, 447.
CH. IT.]
DKCUNB AXD PALL OP THE COXFEDEBATION.
191
Upon thia objection, it will he aufficient to quote a single pa»-
sagzi! from the same oclebratcd work, aa it affords a very striking
commentary vptm Rome extraordinary doctrines recently pro-
mulgated.' "Itestinjf on no better foundation than the consent of
the State Icgislftturps, it [th« ooofetlcration] has been exposed
to frequent nod intricate questions conocmia^ the validity of its
puwont, and litis, in sonic instances, given birth to tlw unormoiia
doctrine of a right of It^slative repejil. Owing ita ratificati<»i
to a law of n State, it has been contended that the s^ime authority
might r(^|wal the law by which it was ratified. However grons »
heresy it may he to maintain that a party to a compact has a right
to rrvoki> that iwropact, the doctrine itself lias had respectahlo
advocates. The poA.tiliility of a question of this nature proveji
the necessity of laying the foundations of our national gorem-
ment deeper than in the mere sanction of delegated authority.
The fabric of American empire ought to rest on the solid basis
ol the O0.KSCNT OP TB£ PEOPLE. The streams of national power
oiifiht to flow immnliately from that pure, original fountain of
all legitimate authority. " '
^ 269. The %'ery defects of the oonfederatioD seem also to haro
led Congress, from the pressure of public necessity, into gome
usurpations of authority, and the States into many gross infrac-
■ tions of its Ifgitimatc sovereignty.' "A list of the cases," says the
Federalist^ "in which Congress havo been betrayed or fort-cd by
the defects of the confederation into violations of their chartered
authorities, would not a little surprise those who have paid no
attention tu the subject."* Again, speaking of the western
territory, and reforriDg to the OrdinODCa ol 1767, for the gov*
emment thereof, it is observed: "CooKreM have assumed the
admtnistratiun of this stock. They have begun to render it pn>-
duetirc. Congreas liave undertaken to do more; they have
proooedod to form new States, to erect temporary governments,
to ap]H){nt ofTiccrs for them, and to prescribe the conditions on
which such Stales shall be admitted into the c«>nfederacy. All
this has been dune, and done without tho least color of constitu-
tional authority. Yet no blame has been whispered, no alarm
been sounded."'
■ Tin PxIfnKil, Ko. 13 1 1 EcM'tCMoni, Lect-lO.pp. »•! [^ fJlt. |ii. 314, SlG].
• tlM Fcdcnlud, Ho. il * Iht FcdenJM, M*. 38.
192
BmOBY OP THE CONPRDKRATION.
[BOOK II.
% £T0. Wliatorer may be thought as to eome of thc«e ctiamor*
Atoi] (lefoctii, whot]]«r they were radical deficiencies or not, tlicro
cniiDot \>c u dwiltt tJiBt othcnt nf them went to the very marrow
and exiHriiei; of ^vernnioiit There had )>c4!n, and in fact then
wore, different parttcH in the sereral States, entertaining opiniotu
hostile or friendly to the existence of a general government' (a)
The former would naturally cling t^> the State govemmonts with
a cluHO And unabated zeal, and deem the least possible delegation
of power to the Unign aufficient (if aiiy wen* to bo permittcdX^y
with which it could creep on in a Bvmi-aoimatod state,
latter would aa naturally dc«iro thnt the powers uf the general
l^vernnK'itt ithould liavo a real, and not merely u siMp^^'uilcd vital-
ity; that il rtliuiild net and move nnd guide, and not iiicroly U>t4er
under its own weiglil, or sink into n drowsy decrepitude, power-
lefls and fuiUied. Hut each party miut have fell that the oonfed'
oratiuii had at last totally failed as an cfl'cctuni instrument of
government ; that its glory was deimrteu, nnd its days of lubor
done; that it stood the shadow of n iniglily name; that it vm
seen only as a decayed monument of the past, incapal)le of any
enduring record ; that the steps of its decline were numlKred and
fini^hnl; and thnt it was now pausing at. the v«ry door of that
eommon scpukhre of the dead whose inscriptJon is, Nnlla vatigia
retrorfum.
§ *J71. If this langimge should be thouglit too figurative to suit
the «it>tiriety of biatorical narration, we might avail ouisclves of
langiiHgi- as strongly coluntd and aa dcsjHinding, which wu at
that period wrung from the hearts uf our wisest patriots
stateomon.' It is. Indeed, diflScalt to overcliarp; any picture
the glooin and apprehensions which then pcrvad^-d ttie ptiblie
conncils as well m the private meditations of the ablest men of
the iMitutry. We an> told by an historian uf almost uoexample
fidelity nnd lumlerniiou, and hiuuelf a witness of theae scenes,*
that " Ih** confederation was apparently expiring from mere de-
bility. Indeed, its preseiration in its actual conditiaa, had it
* t Mmh. IJh of WMUagtM, 33.
* SUudL lifrorWMk.t£MkM.H.M^llH.tlt,114.118.1UilE«nt'*CMM,^
W) 1 Took. tOaA. Caam. App^ mu D, lU. IM ; 1 EUkCt EMMh, 308 In SU ; 3
BBoTi IMMte. M, SI to 14.
* S llMilt. Lift ot Wm^ lit.
(a) Sm Vn Bum. Mhkd PwtiM^ S» 1 HiaMWid, gaaaal Bat rf S. It. L S
CH. IV.] DECUNB AND PALL OP TUB COKPEDEBATION.
198
l)cen practicable, waa scarooly to be deaii-ed. Without the abil-
ity to «x«rcii)« them, it uithheld from tlie States powers which
ore essential to their aovereigaty. The huit hope of its fricndti
havintr been deatroyed, the vital necpSHity of some raflasiire which
might prevent the separation of the inu-gral parts of which the
American empire waa composed, became apparent even to Uune
who had bc«tt unwilling to percelro it."*
> Mr. JolTaraan mmt tha fall«wing Un|,-ua||^ t "Tht (ItUoM brtwMn tlu SutM,
Dnder tha old Aitkin of CofiManlloti, fur l1i« jiurpow of Joint dafenM ^lioBt th«
«q(limion» of Omt ItiiUiii. mu fouiiJ iniuEncicut, lu trntju of alluncc gcnmilljr arp,
to mifane toHpluncn irith ihrir luutunl itipuktioni ; awl thae an« fullUlcd, tlut bonil
vu to ex|>in of itMir, and cac'h State lo bccomo acircT*)|[a and indBpendnit In all
tfaiiij[K" 4 JeHunun't CorratpL ^^^. Tlina, ha iK^^in* lo tiarn lii'lil tlia aitnordinary
Ofrinion, that tl>« ooatwl«r*tlon wm U> cmm wiib tb« Wir, Of, al all n«nU, with lb*
ruUtnunt ut our tnatf atipalatioiu. <a)
(d) In •ORia ImUdoh, hninm, Mr.
JaBanon afijMare to bare ^skiin at thm
oosfcdention ^aa poMoaaJng conaidcrBble
Titalltj. nrnjcf, •nd Tl(or.
Ill ■ IcUor to Joha Aduniv <^ <^ ^U
of Trbnaij St, ITST, nivniitg to what
Mr. Adan* had Hid ol lh> Cnagtt»K tliat
it *' ii Mt a bgiaUtire but a diplomatio
MimUy," Hr. JcdTcraon layi : " S<f {arat-
laf into jtiU tho wkola Kivct*i^:ty r4
oar Sutaa, aoot* of th«a* part* ars jivideil
to CtingnM. Upon thna I tbould thialt
tbcm boih IpgiilatiTv and uucutire, and
tltat troold baro b«n judiriury oj>o, had
not lb* omCcdcrstloD required them for
Otttalii purpoati to appoljit • jadlclai;.
It hat accordinglj bMD the dMliloa «f
onr oovrta that the confadaiatian ia a part
of tka hw of tha land, and anptrior in
anthoritT to th* ordinary lam, bmuae U
caannt be aluraj bj tbc legialatura uf any
on« Statfk 1 donbt whather thej' are at
all ■ diplomatic aaaembly." JaBtrton'a
Worka. II. I'iS -. Work* of John Aduni,
VIII. 133. EhKwhore Hr. JelTeniui n-
pKaiied the cjdaiiut that the oonfaUratiaM
t^ the pewar to coerte Iha ptofonNuea
hj tndlTidnal Sta4aa of MUonal datl«^
and that ii was inplioJ In tha oeanpact.
J>a<non-> Works, IX. 3»1 ; USi of Vad-
iBon.l^BiTea, L 302.
TOL. I. — 13
BOOK III.
THE C0NSTITUTI02J OF THE UNITED STATEaj
CHAPTER I.
V OBIOIN ISD ADOPTION OP THE COSSTtTtTTlON.
§^72. Ik this state of things, commissioners were appointed
by thtt IcgiiilaturoB «f Virginia and SJarjland, early in 1785, toj
form a compact relative to the navigation of the rirera Potomao'i
and Pocomoko, and the Cbcsapcoko Bay. The GommiasioDera
having met at Alexandria in Virginia in March, in that rear,
felt tlie want of more enlarged powers, and particularly of powera
to providu for a local naval force and a tariff of duties upon im-
port«. (o) Upon receiving their recommendation, the legislatoraj
of Viiyinia pasiic-d a resolution for laying the subject of a tariCF*
before all the Slates com|N»ing the Union. Soon afterwards, in
January, 1786, the Iegi«laturc adopted another roaolution ap-
pointinf! commissi onera, "who were to meet such as miiilit bo
ap|K)inted by Uie other i^latt« in the Union at a time and place to
be agreed on, to take into eoiisideration the trade of the United
States; to examine the relative situation and trade of the States;
to cooaider how far a uniform system in tlieir commennal rela-
tions may be necessary to their cotnmou interest and their per-
manent harmony ; and to report to the several Statea such an act,
relative ta this great object, as, when unanioioiisly ratified by
them, will enable the United States in Congress assembled to
provide for the same, "'(J)
§ 273. These resolutions were communicated to the State's,
and a convent ion of commissioners from five States only, namely,
■ a iUhtt. UU or Wuk. »0, »1 ; l Kui* Cohim. 108.
(«} fOtm. lifoorHtdbM, 1. S(8; It. »7.
iH KvM, Ur« at X*diMM, II. ».
CH. t.]
OBicm AND AnomoN of the cwfrsTirunox.
195
New York, New Jersey, Penngylvanift, Delaware, and Vii^nit,
met At Annapolia in .September, 1786.* {a) After diacuftaing the
subject, they deemed more ample powers ncceiiaary, and »» well
from tbia ooosidenition, aa because a small number only of the
States was represvuted, th«y agreed to como to no decision, but
to frame a report to be laid before the several States aa well as
before Congress.* In this report they recommended the appoint-
ment of Gommissioners from all the States, *'lo meet at Phila-
delphia on the second Monday of May, then next, to take into
consideration the situation of the United Slates; to devise such
further provisions as shall appear to them necessary to render
the oonstitutiou of the Federal government adeifuate to the ex-
igencies of the Union ; and to rc[M)rt such an act for that pur-
pose to the United States in Congress assembled, aa, when agreed
to by them, and afterwards con&nncd by the legislature of everj
State, will effectually provide for tlie same. "'(A)
> 1 Abkt. Uwndn. S8T : t PitL Hbt. SIS.
« S UudL Lib of Wjufa. n 1 i Ktk. SIS i 1 II- 8. Uw« IBioras t Duomi edit.
ISIS), pp.64, ftc. to as.
* 1 Aaier. Mmmiii. 207, SOB.
(a) Wn«,Ur««f H«1Imd,II.H,117,
a) Rimv Life of Haduoii, II. !».
TIm pniBbU of thii Kt ii warHkj ef
prw«rT«ttow u » rfc«|cnillai> of tbe Inuno-
dbito iiul inpMiliva nwmitr for ndical
■lisagi* ill tlMbaiid«f iinioa. " Wh«raa
tiw OaoMsl AaMublf of thii Conunoa*
v«]lb, uktng tiito *i«w U»i octul iltn*.
tion of tin cMtTedttvcy, u w^ll m t*4*cI-
ing en the »laniring RpreKDtalioBa made,
ftoMi dno to tinu, bjr tbc UdUmI StatM
Is CongnM, putieularl J tn Oudt m4 of the
15tk da; of Pebrtuy Int, can do laaga
doabt tbrt the erUi* ii arrival >t which
th« good ftofie of .\ni«rim tr« to d«(*d«
tk* *olnn« <)uuIlo« BbtUier thrjr will, by
kIw and magBMihuoua aS»1«, nap tlw
|nit IMU of that inilcfwndanot whkti
iktj ha«« M glorioatij aoquited, Mrf of
lb< UhIm wUch th*r ham OHDcnMl
wHh (0 nook of thfir camntao blood ; or
whc*b«r. bf luring way to »u«a<J >ahHi*-
is anil jngudicm o* to partial a»d U*»-
■iMiy latanata, tbtjr trill wiwmmb tlw
aiufjdoua blcaidn^pi ]irapar«d br tlum hf
lb* BfToluttou. ind rurnuih to its mrmiea
an enatnal triuoi[>li ovrr Ihotc b]r whoa*
rirtae nidnlor It hubccDaoniniplUbtd:
and vhenai tha Mine nobic and ■i(«ndad
)>ollc7, and thw miaa fnl^nul and alko-
Uoaale atntinviiti whidi originaUjr iMw-
minad tbo citueoa of thia CoannMnwtaHb
lo unite with their brttkrra et tha OtlHT
Staira Id iquMiihitig a fcdanl f»*«n-
ln«Qt, cannot but be felt with ajnal lorca
DOW, aa motiTei t« Uf Made ertiy tnferiot
eoaddefatiao and to ooncar b aueh farther
BOB taaaloiia and prorialoM m may Ix »a-
tiaauy to atnite the p«at olyaet for whkb
that goiwiBmenl <ra( MtaUiihed, and to
nader the Uoiud Statca m hapfj In
peaco ai th«j have been gloeioDa In war."
The caitfal woMtng of thia pnaiabi* vaa
doe to a dnir*. aa Hi, Hadjtoa aaji, " to
give IhU nibieet a Tcty Mlenui dreaa, and
all the weight that rniild be deriicd (ran
a ali^a Suto.~ I/<Iter to Waikli^pMi,
tUvM*! Life of UadikM, II. 13S.
106
cossirrcnoK of iob united states. [book ra.
S 274. Oq recieving this report, the l«gi«I«twre of Virginia
pasaed an act fur the- uppointiiicnt of delegates to meet such as
might bt! apiwiiitoii by ollivr States, at Philadelpliia.' (a) The re-
port was alito reevived in Congress. But no strp was taken until
the legislature of Xew York instructed its delegation in Con-
gress to move a resolution, recommending to the several Stutee
to appoint deputies to cpeet in conrentifMi For the purpose of re-
vising and proposing amendmenta to Uie federal Constitution.'
Oo tli« 21st of February, 1787, a resolution was accordingly
moved and carried in Congress, recommending a convention to
meet iu Philadelphia, on the second ^lomky in May ensuing,
"for the purpose of revising the Articles of Confederation, and
reporting to Congress and the several legislatnres such altera-
tions and proTisions tJicrein, as shall, when agreed to in Con-
great and confinned by the States, render the federal Constitution
Rd<>(|URto to the exigRncica of government and the preservation ot
tlie Union."* The alarming insurrection then existing in Massa-
chusetts, without doubt, had no small share in producing thia
result The report of Congress on that subject at once deoHui-
Btrales their feam and their political weakness.*
$ 275. At the time and place appointed, the representativee of
twelve States assembled. Rhode Island alone declined to appoint
any on this momentous occasion." (b) After very protracted delib-
erations, (he convention finally adopted the plan of the present
Constitution on the ITth of September, 1787 ; and by a contem-
poreneuus resolution, directed it to be "laid bcf(Mi« the United
States in Congress assembled," and declared their opinion, "that
it should afterwards be submitted to a convention of delegates
cho»en in each State by Uic people tltercof, tmdcr a reconuncnda-
tloD of its legislature for tlieir aaaent and ratification-/' ^{c} and
> 5lbnli.lifoanrMli.es.
■ It *■*» carried In tbt Miuta of th* fluto by • nui^t; of mm onlj. S lluih. lib
oTWatli. 1S5.
■ ! Plik. Hilt. SIS ; 5 Uanh. Uh ot Wub. Ill, 138 ; 11 Jaorn. oT Oangrau. 12
13, U: S mk. Hitt. Sie. ttO, «!£.
* SrUk. Hiu. aM, 221] lorn. ctCooifftm, Oct. \7»i 1 Socrat Joiun. 9SS.
■ S lUnb. lite ofWadL lU.
* SUanL Uf* of Wuhli^oD. ISS, l»i Joats*] of Oonfeatiuii, SrO; ISlMun.
orOMeM^ io9i s ntk. Riat. sst, mi.
(d) Bine^ UraoTUuIiMi, tL Itt.
M AhmU. HiM. o( lUiod* Ubwil. It t«7.
Ui U*M, U(a oriCnliiOii, 11. 477.
cmi.}
OBIGIK AND ADOPTIOjr OP THE COSOTITOTIOS.
197
that each conrcntiun iu»CDtin4t to and ratifying the same should
give notice thereof to Con^ctw. Tbc coiivcntitHi, by a further
n-ftulution, deelarvd their opinion, thnt as noon aa nine States
hod ratified tlie Cuimtitution, Cougreea should fix a day on which
electors should be appointed by tlie States which should have
ratified the same, and a day on which the electors should assem-
ble and vote for the president and time and place of oooimencing
proceedings under the Constitution; and that after such publi-
cation the electors sliould be appointed and the senators and rep-
resentatives elected. l*he same tesolution contained further
recommendatioits for the purpose of carrying the Constitution
into effect.
§ 276. The convention at lite same time addressed a letter to
Congrctt, expounding their reaauus for their act», from which tlie
following extract cannot but be interesting: *'It is obviously
irapmrrticnble," says the address, "in the federal government of
these States, to secure all rights of independent sovereignty to
eaeh, and yet provide for the interest and safety of all. Indi-
viduals entering into society miint give up a share of liberty to
preserve the rc.it. The magnitude of the sacrifice must depend
as well on situatjon and circumstance as on tbe object to be
obtaioed. It itt at all tiim^s difficult to draw with preeieion the
line between tlio««e rights which must be snrrendered and tlione
which may be reserved ; and on the present occasion this dilh-
culty was increased by a difference among the several States
as to their situation, extent, habits, and particular interests.
In all our delil>orations on this subject, va kept steadily iu our
view that which apjwars tn ua the greatest inton'st of every true
American, the eontolidaiion of our Uwon, in which is involved
our prosperity', felicity, safety, perhaps our national existence.
This important consideration, seriously and deeply impreucd
on our minds, lud each Stale in the convention to l>e ii:«8 rigid
on point« of inferior magnitude then might have l>een otherwise
expected. And t!ius tkt ConttUvtioiu, which we now present, is
tk« remit of a ipirit of amity, and of that mMtunl drftrrntre ami
eoKCftnun which the peculiarity of our political sittuition ren-
dered indispensable." 1
5 277. Congress, having received tlie rc)>ort of the convention
■ uJoom. afCoucn«,109, 110; Jonn. ol CoonntioB, S47. S<$ ; B HmsIu Ufa
ofWulbUV.
198
coxsmcTios or the dnited sTAtEa. [book iu.
on th« 28th of September, 1787, uiumimoiwly resolved, "that th«
said report, vith tho reaolntions and lvtt4;r avcoinpanying the
8nm«, be traosmUtvd to tho scvtMuI legislnturcft in urdcr to b«
submitlod to a c^nv^ntioH of' dtUgatei ehunen in each State hg (lit
peopU thtrtof, iit conformity to the resolves of tJie coare&tion,
■undo and provided in tbat ca«c. " ' (o)
§ 278. Conventions in the rarions States which had 1>ecn rep*
resented in the general convention were accordingly called by
their respective legislatures; and the Constitution having been
ratified by eleven out of the twelve States, Cunirross, on the 13th
of September, 1788,' passed a resolution apixtintiog the first
WcdnoMjay in January follovinK for tho choice of electors of
president; the firat Wedaesduy of Fobruury follonin)^ for the aa-
lerablini; u( the elcctum to vote for a pre»idi-nl; and the firet
Wodnusday of March following, at the then seat of Congress (New
York), the time and place for conimcucing prootH-dtnf;^ nnder
the Constitution. Elcctoni were accordingly appointed iu the
aevenil States, who met and gave their votes for a president ; and
tlie other elections for senators and repreitentnttvee having been
duly made, on Wednesday, the 4th of March, 1789, Congress as-
sembled and commenced proeoedings under the new CoostJtu-
tion. A quorum of both houses, however, did not assemble
until the 6th of April, when, the votes for president being
counted, it was found that George Washington was unanimously
elected president, and John Adama was elected vice-president.'
On the iiUth of April President Washington was sworn into office,
and tlie government then went into full operation in all its
departments.
§ 279. Xorth Carolina had not, aa yet, ratified the Constitu-
tion. The first convention called in that State in August, 1788,
refused to ratify It without some previous amcndmenta and a
declaration of rights. In a second convention, however, callod
in Xovem)x*r, 1789, this State adopted the CoustitulioD.* The
> G Manli. lift «f WhIi. 198 ; 11 Jonrn. cf Omptm, M, 110 : Jonrti. «f Con****
tion, Ap^ Ml.
* JomL dlContvatlaii, App- 449, ISO, 4SI ; SPllk. llUt 291.
* G Uank. Ui* et Vub. 133, ISl, m ; 3 Pill:. HlM. 317, 318 ; 1 Uojrd'a THtmUt,
* S PiU. tint. 2)S ; jMm. of Cannatiof^ Afp. US ; I K«at'i Comm. 904, SIM.
in) RItm, 1.1b at MadlMIK 11- ISO.
tm. I.]
ORIOIK AND ADOPTION OP THE COSSTtTVTION.
199
State of Rhode Island bad declined to call a convvntioa; but,
finally, by a convention held in May, 1790, its (MS4.-iit wag otv
tained; and thus all the thirteen ori^nnl States became pArtics
to the new government. ' (a)
§ 280. Thn9 wad achiered another and still more glorious tri-
umph in the cauite of notional lilierty than even that which sep-
arated 119 from the mother country. By it we fondly trust that
our re[Hil>lioan inntitutiona will grow up, and be nurtured into
mor« matured strength and vigor; our independence be itecurcd
against foreign usurpation and aggrcfuiion ; our domestic bletu-
inga be widely diffused and gencratly felt; and our union, as a
people, bo perpetuated, as our own tnwat glory and support, and
as a proud example of a wise and beneficent ((ovemnient, entitled
to the respect, if not to the ndmi ration of mankind, (i)
■ 2 IHtk. nUt. S«5 ; Joarn. «r Convention, App. Hi, tSS.
(n) Bjvttiaguidethe ArticleaafCon-
ftdfntian, vliwh hj tkcli tarnii Ttrv to
I bt uddM of " pcrpdtiul union," iin4 bj
I nMltntbig Uutatd tbvmof * Comtitu-
['lion to «liieh (wo of the 8t«tM bml not
Mwntad, HioM SlatM wen U onto tad
•ICNlBtllj Mcdudtd frain Iba Uuion, by k
rerolntioM in tLe giyrcnuiifBt. vhich,
, tiioag^ powcful, mx oslf to bt jnitiScd
ip«iind**ls»(1arl« thowon which uir
MTotntioii cui 1)«drfmiil#i1 wliea llie «alab-
lidied gonroment baa CMwd to ■Monpliih
tlio parpaiM of It* ciMtioD. But tbovgh
thow 9btM w«r* tku cut off rram ouutl-
tulloaftl alBIUtioti, thtj nor* aot pat, !a
tiMJr iat««voan« with thr ],-0TniiBtot uid
In oonnwebl Rguktions, no Uw fooltng
of CsMlipi Utlona ; tiU, on the othnr
hand, thouumoat kindnmuid fcrbMnuio*
mi oxtreiml U thi exjifclatioD that th*7
would sot long MQtuiiM to iMut the no-
ftMltfa* of ihilr tiTnntliHi ■nil fwraartnln
tluir ndW«l la takd tkrir prujMT plUM b
Uh ADiFriou fnoflj-. Hildnth, Hial. ef
Dmitod 8ut«^ IT. 147. 1«9 ; Ittkin.
HUt.ori;Bitod8«M«i,H.«s«. a
<t) Th« IbUowing no**. It ritouM bt
.>t>t«d. U bjr tlM nlitor of tbi 4t)> adiUon
'at tbi* work, Hon. T. H. Cooitj i At
tUt petat it VU.J not bo fnnpimpriate,
in Tjow ef tho dioenarioaa uid «ontr«Ter-
idw wbieh hare ui»n linta tUi work wm
pnblbhod, and which itlll donand mdm
pnrtloQof th«att«nlionorboth thestat**-
man and the jliriat, to call altrnlion to
Mttaia |itinelplM asd niagca b American
eonatitntional genramta^ whidi, thoagd
Pertaining nun* pnrtlcuUftf to Main tbati
to [tdnal poUey, art nornthal*** nw**-
urily had in tlt« when a comiiUta nirrey
of OUT political tjston i« dodnd nad
■ouKht Wn tUudo bue to the qrtttan «f
local atlf-govornmuit, wbtdi. In mtpMl
to local ootu«nia, pnrailt uiilvvtmllr.
In anothtr work the prtnont writer baa
had ocEBiion to MLf,,tb*t, " in tho eiam-
ination cf AnMttcan oonaUtnllonal kw
ve ahall not fail to notioo the oaie takn
and Um nwau adofit*d to bring tht agtn-
daa bf whfdi poww (* to bo MCttthtd aa
nwaipeeaiUa to llwrabjMla npon wltidi
the pema U t«op«««ta. In eotttradittiiie*
lion to thoM fOMtnmtnta abn* pow«r
it foncMtnttd la one man, or Is ma or
OMTO bodiw of mtn, whoaa tapMrudon
and actlfn eontial oxtMtd to all the olyecia
of gDTatnaMBt wltUn tbe lorritotial Umiu
of lb* 8tat«k tbo Anwrlcaa tratem ia om
of OMOpMa AertUr/itaaHim, the jirianary
uid lital tdM of wfaiah ia. tlut IomI af-
200
lOM OF TQE ITMTBD BTi.TB3. [bOOS HI.
Uncball b« nwiwgvd hj loctl uithoritM^
Mid anljr gmenJ afliit* liy thx cpnml
ADthorilj'. It wu (indpT llic tuulrol of
tkU Idra thnt n lulioajil CoiutilntiDU ma
ronntil, luiilur which the Stain, while
yielding tu tilt- iiHilonol goTommcst nam-
pUto nnd cxcliislvn jurixdiclion over m-
twniil iffal™, coiifrtmlEpon il miali pow*™
only, iij rv^ri) to matMi of intcinal
iFjiCulntioD, ui Ketiiinl U> \ie norntial to
iiaticnal uniuii, strrngth, iiid harniuiiy,
imd miiliout which Ihe purpoio in urg>n-
Itinft tlini nallonal nuitiority might have
been rlorratpcl. It ix Mi. nlw, tliat Im.
pel* the iFVrral StatiH, us if liy uuuimom
aniingtnient, to lubtlivid* tin-it tamlory
into MQiitir*, town*, road and Khool dU-
triri*. and to txaier upon nch tho jumrn
of lotxl IrgltlatloD. and al*> to bttorporalc
cities, boraiiglii^ and villit|tm vhonir«r «
dcnto p«fiaUtton miairEa iliirerrut npila-
tloni ^m tliou irbi«h an ncodfnt Car tlw
rnnl >l[«tr{ct». Thit tjMcm u one which
•ImMt wcow • put of thn nry uUnn of
At nw« to wUoh w* boloDg. A aiuiJkr
labdivitdon of tho naUn for the purpotea
of municipal gAttianunt hai aiMed in
England (nmt Uie aarlitct tgiu- Crabbe's
Ehrtofjr of Engluk Uw, cb. 3 ; t Bl.
CODun. lU ; tfallani'i Uiddlc Agra,
(A. 8, pt. 1 i 3 Kent, 87S: Vaujhaut
B«rol»[io[i> in F.ngliih llittotj, U 3, «b.
8- And ill Aniarici ttio Ant »ettk(% a* if
initiDCtivnly, idoptDil II ia Oi«ir fniin* of
goveniTDiiiit, and no otlii* hai evtr mip-
pWitcd It, or otax found advocat«a."
CooliT. CowL lint. IW.
The vTittn «paa o«ur drll polity, 'ho
hate catrfully ttudiad iU pbilaaop)i|v hare
not only taien notico of tUa ftVMaiy hct,
b(it thry havK faTariaUy attrlbnl*! to it
the lilNitM* *o eiyoy. De ToofaeriU*
diaoiusw U with ckunet^ and coulrMt*
It fordUy witli tb« TttoA idM of otattil-
ladoM nndtr which ooaoitullonal fn-cdom
haa nnvr hroonia an ntahUibnl Cad.
Ueoaonacy In AuMiioa, ch. G.
The ■■me Mmpaiuon b made hj I>r>
IJabsr. who ibcnn that a oMlratiiBl gm-
mnuiilt Thnih tt be bj itprtHntoiivB
fttelf choMin, tnnat be de«potie. aa aqr
other r>tnn at crntraliiatiun nowirtly
ta. Civil Liberty and Sftr-Ooranunent,
eh. fil. Mr. irttenaa is hit ittiNaMiit
wrilo thni toafiiend : " Tha way to bav«
ffoud %iii nfo jcoranoMnt b not to tm«t
ail to ouu, but to diridc it among the nnny,
disttibutitig to evrry one exactly tbt rtinc.
tioD) liv U comjHlont to. Lat the nalfanal
^venunrul te inttiutad witlk the defouco
of th« notiuu, and ita foreigB and feiivnil
RktJona ; the Stato gi>T«minatita with the
dvll TiKhta, law*, policy and adininl«tn-
tionorwtrnt coMOMti* lh« State gwmllyi
the ooiioUn with the local vonatrn* of the
oomitiea ; and each ward dirwt the ioUr-
e>ta within iudf. It ii by diiiding and
gnnbdiriitinjt Ihn* n^blici, from tbagnat
natioTiaJ ouv duwii tliroii^h *ll iu mibot-
dinationi^ nulil it toA* in th« admiaism.
tion ol ovary man'i fann by hinuelf i by
placinn und«r trory one what hb own tjv
may auiwrinlnnil, that alt will he done for
the beet. VTbat W dntioyed liberty and
the tighta of man in erery govetnmeot
whlrli baa ertw cxiattd undtr (be ion t
The ganenliiing and ooukq Inline all
cana and |io«rcn Into one boily, n« niatta
whatbor of Ih* aalooala ef Ruala or of
Ftancc, oi of thv arialocnU «f ■ Tuuetian
Senate. .... The eUnuntaiy nfrablioi
at tbc ward^ the cooutj fEpublicii, the
Slate npnbllca, arnt Ihn rtiaibtic of the
tTniou would (oral a grudatioa of a«tlwT>
ide% ftaading cadi on the but* of law.
holding cTcry ono iti delt^Ued aham el
powan^ ani( caMtlimlaK Iraly a ^t<n <4
iarnhmental balaacea a»d chtoka tor the
govofnaaeU. Where ertry man b a aliarec
la the dtnctloa of hU ward tepublic. or
of wxne of the hljhcr ono, and ftcU that
he b a i«ftkiF«tor In Ih* ijDvmiaMKt o(
affair^ not nierrly at an alKtioai one day in
the year, bat (Tery day ■ wbou there ahall
not baa roan tn the Stato who ahall Botbn
a BMnber of aMM oB* of Ua awnnib, great
or etBtll, b« will lot tha b«rt U toni ool
of hb body Boonet than hb t*"ar be
WTMted ftoro him by ■ Ccaar or « Bma*
pnrto." LgttattoCalJcl],JoffciMn'aWoft%
CH. I.]
OBItilN AKD ADOPnON OP THE CONSTtTCTION.
2(tt
VI. MS. Ui. Biuke *1m uiditaKa Um
dual defect in the frtnch ijitcm vhcu bo
Mj^ "Tlia liaad ot anthorilr wu K*a
la avicyiliiiig tad in crvrr plitoi. AU,
tharrfon, tlurt faappnuxl uuiia, «mi ia
dan»UcMAjn,wuaUributfiI toth«j^-
(tnmuit ; mod n u tlwtfi liaiiptni ia tliU
kiud of aDtoloiM aiitvcnal iniarbmic*,
oint U^a la o*)iuua fowBttmiiiiX**jt,
I umj mj tritliiout «xcepti<)n« in oontcnipt-
iUe imbecility. " Tiioo^tB and Detail*
M Scndty; Work* (Little, Brown, t
Oh'* mL IHfiSI, V. 1C8.
nifKidiiig tlie UBiul diriMoa of milbot-
itjr betiieca tiia Statia and the low<7 muni.
eiialitiw. Da TooqunvilU, k]i*akitjx of
New Engbiod tovntfaip goTrraiiicnl, nyii
" tn tba part ot the Union the iinpaliion
of iKditical Bclicily n* flinn in the taon-
iib^i and ll nM7 aliaoal ba Mdd tlMt each
of tbam MJgumUy Uinotd an indapcndeot
Batlaa. Whan lb* king* of England a*-
•crlol tbtir fnpTMDBcy, tliay irm mn-
Icntnl 10 aaniBB iha mnWl pooar of the
Btaia. Tha toombiiia of K«ir Enftland
nmwniMl aa (hay mra befotv, and, al-
' ibongb they an now mitgeet to Uu 8tat«v
thtj wen at flnt aouoabdepandant «poa
iL It I* Ispoftaat to nmembcr tbal Ifacy
ban M* bean tnmtad with tiririlagca, bat
lk»t they mm vb Uw touliMy t# hara
Rncadcrad • pnrtiMi of IhidT iuilapsiid-
anea totbaSkla. Tha tomaUpa nra ouly
Nbordtiiaia t« Ika SUIaa la thoM intarvatu
whMi t ihaUiannMNialiaatlMrwaconi-
nMni to all ritiaca*. TbayaniBdapnadanl
b all ikat eoocoma ihimidrca ; and among
tka lahabtlMita of Nav England I bdicro
tkU aot a maa ia In bo Ibnad who would
atkaowUdgB that the Slate ba* any tight
to intatltn ia tbrir local intenata." Da-
mocTaey la Anaiica, cL 0. ib. Faltny
gOM man into dtUll i ifKaking of tba
New Engkiid rolauie* oolUdiTnly, ba
•aya: "Wbile tbt antwioi niaKblnitai
wm alcoted by the votaa of tbe baoncn
I at th* whob oalaay eonatad togatbcc, the
4*pnllM wo* choam bf aadi town by a
' n^ri^ ef Ita roten. .... Tbe Aare
vUdi, Ihrougli tholr Jahytwl «oIm in
tba gnien] tonrt^ tiie toarna bad in the
genanl kKuUtlon, waa not tba ditaf td
Ili» fuaetiiina wlikli Wlonipd to them.
Tba uiniik-iiwl jiirudirtiDim pmant a psm-
liarity of the Kicial aptcm o( New Eng-
bad. thiu wbtcb none toon attm^i at dtlt
day tbe attantion of intrlliicmt *ti«ng*i%
or ha* had mutv inSuenoa on the oonditMn
and the tbanclcr of the peopla tfcmigh
the tight gencratbu* of tbdr Uate«y.
Tlix turrilDtT of th*M SUI*<v «»)) tlie o(>
ik'ption uf that imall portiou at tha nurtb
vfliJcL rrmaiiu unoc-upied, U laid «S into
diitricU oi modDialoutaat, aad the inbab>
itanta of aanb form a little Inly |»litl(^
wilh an adailnlMTalioii of Ita own, «aD<
ductal by oflidalii of iti own rholct, ao*
cording to it! own will, within certaia
limila (mpoanl by tbe higher commcoi
authority. WItb wiiurtliiiii; uf the tain*
proprirty with which the Dulioo may be
uid to be a oonfedirac; of rcpuUica
called SliUta, each Xtw England StaU
tnay ba daaeribad M a eonf«d«rary of minor
npublin called totnu. The lyatnn ia tba
extreme npi-aiite of a politii-al aanttat-
Uation. Tu th» iitiuwil vxl<nl connitent
wilh tba oonunon aeiioii ntid tbe common
wellatv of tbo aggN|[ale ot torn* that
niuke the Stata^ tba town* »av«imI1y at*
Finpowpreit to lake ma of Iboee inleraat*
of thoiri which they mpKtively can beat
nndentaad, aad can woat efficiently and
iniMt (ounomlrallj provide for : anil tb«w
are identical with lhainter«el!i ■hlcli nroat
directly cmcsin ibc I>nUio Mciuity, com-
fort, and monk. Thai it bthn^ to them,
and tbay an conifallad by gEnenl lawa of
tbe Slatn withia wblch tbey are Mveratly
indndcd, to ptotMl the pubtie bralth and
oricc by nwaiie of a polke i to naintaia
Mlb and coaiTenNet aomnmnlcatian aboat
and IhnHi^ Ihalr pmisct* by road* and
baidgM 1 l« fliniiah food, tlolhinfb and
*Ml(r to their poea ; to inorid* for the
ednoation of all tbctr poor at tbdr com-
noa abatga. By forca of thla lattilntiou
wmj naa la Kea Eaglaad btlo^a to •
mall aoouBnaity of nei^bor* knows to
the law at • corporatkn, with right* and
202
OOK9TITUnON OP THS (nOTED STATES. [BOOK HI.
llnbllltloi M inch, MpaMe of minft and
nubjn't til Ui Riii-il ill Ili« (iiiirU iifjiittuc,
iu dUputisa willi nay |inrtfiui iudlvMuHl or
coqiOTiiW. One* » year llie corparaUoii
cbooMS tlin ad minUl niton o! It* «flu>«.
ind d«t«niiinM tli* knuinit of inonrj with
which it will JBtrust thum, ninl hu« tbb
iiliall bu ntiacd. If the Sutc Ictid* a gsn-
■nl tflx, It i* th* lawn trauaiic* that miMt
|m; It : >iiJ t1i« Sum Aim th« proportion
duo from Fuoli town. 1iiiT[ii)[ it to thi> town
to dl(tril)atc the burdm of ita vha.n in tlie
awwWBont among it* own poaplc. Ai to
niattcn of thetr own Inti-mut, ihn towns
pnaaDt Uidr p<^tIon«, uml m to nuttan
of gmenl conctm tbey wnil t)i(<ir wlf lo«
to tlie ecntnl authoriliw. By thdr nugit-
tntoi ibej kutcIm a rMponubls luper-
tUoh of tha rlcctlona of olDcen of tha
town, tbe oonnly, the State, and th« Bik-
tion." And ho vrry jaitlyidda; "Tbe
•XpatlaiMo of latar tima* dictatad ImjiroTO-
BMnta of dolall in the municipal «yM«m
of New England ; but ita outline wu com-
plclc wbrn it wu lint doriaed." Hi«t. of
KMrKitgUnd. II. 11-18.
n* polttlut or]pi«lntte«ii n»d*r Iho
8tUa wen !«« parfectly ronaad. teaa ona-
I fletalj ««id«we4 with corponte lUb aad
vf|or, and braugbt local aSiJn t«« g<ai«r>
tUy uader local control In tha Soaibem
oolanica lima in the Korlkem ; but the
Mma priodplo of de«BDlialitBtM wu re-
CQ(ila*d, tad tbe dlftwBi of kppljcatian
< «iuduoWadlAnnMofcii«nnMa*Ma:in
Viifinia the eoatf Wm Uw nnit. 80 far
«i tbet* vaa dlfttenoa Ur. J«Ana« h-
mcBtcil t), and aoa^t to pot m and to it
' 1m VltKlnIa thrauf h a lUtlflM «t tiM ooan-
> tiaa Into handnd*. " ThMo Buk npub-
UMk"b«aay«, "wauMbeaaBalDtlRngtli
■f Iba graat one. Wo owe to IbMi iba
yigtt ^Tta to OUT Rit<roloIina la Ita aam-
sneaBMOthitbaEaatmScal**." Lcttar
t» QfTtTMr Tybr, Jtltmoa't Worln T.
9t7. UlUcHt.JaOenoDWBahiitorittDr
ud Utcnity eontrt. Tb« tCEettrc nwUt-
tMt to iba Itmnila of IjiMiBy In H*«
I Safland vai threvib llu ImoI mnMidpti-
;ltia*,aad tbt int bortUa bkv atnuk hr
tho crown ww ainied at tbe ItbortiM poa-
aMBad and citarciaad bf Boaton attd tha
olbar towua In the mMtUfp of thalr frao-
num. Pitkin, Htat. uf Unitad Slalaa,
I. S<^3ST ; Banorolt Hikt. of UoitaJ
Suto, VI. £18 1 Life of Sawnol Adanw,
II. 141. Tho aarllar atlempta under tha
SUurta to InlToduoa atbilrary aulhority
through taking away the colonial oharteia
proTod wholly inoSactutI whilo Uis tower
municipal ipivonitDaita rcmalaad. Wbn
tlic i-lmrtvr of Uhode leland wm mwftmitA
it U uid that "Ma Amrieim tyricnt ^
teum yovirmnemU, which nocaadly bad
coinpi'llinl Bhoda laUnd la tnillatn finy
ymn before, btaone tbv luMiit of pneerv-
ing tho libwty of tb« individual dtisM
«h«n that of tha Stale or coloiiy waa
cnuhed." Araold, BUt. of Bhoda bland,
ch. T. In Maanaebnaeiia. when iba nvU
polity had a theclogiGal buij^ it wa« onn
inntud by lb* dapvUn tba to aan«»dc«
local gonmment wai oectiary to tb* Sixth
OomnwDdmont ; for, aaid tbay, " U*M taajr
not dMUoy thrir polttiosl any bmi« tbaa
Ibcir natunl livts." So Uiey ehing to
»lbc drfl )ibtrti«aor Vew Englaad" M
" I<art of the inhcritanice of their bthtta.**
PalTrey, Hut. of Sim En(tknd, III. 301-
309 ; Banm-ft. HIat. of Unlu.! tttatia^ II.
llS-lSr ; Hata. Hial. ColL XXI. 7*-«L
The oonteat with Androa, aa well in Ktw
Euftluid u in New York and tfowJanoy,
wu D itnixRlo of Ih* pMpI* In d*f*aoa of
tba rl(hl of local gorefMMnt. " Erary-
when tbe people atragglad (or Ibcjr rigbta
and dnrrrcd to he tn*." Dunlaf^ Hirt.
of Kew York, I. 133. 8«e Tntmbnll.
HIat. of Oxnectkiat, I. IS.
If we ^mtion Uia hialotkal laoard*
moce ekad7 we rintll fiwd that thb ri^
of toad ngnlation bta nenr bcMi ante*
alood Co ha a piuiX (row any oenbil an-
Ihoriiy, bat it kaa been rtcopUaJ aa ef
eonna from tbe int : joat aa Bnch of
roaiH^ and jnat aa nuieh a niwaty put
of tha eitU poH^, •• tbe oaMtnl imAet'
byitaalf. SonMlnMallvMonaeBd aaraa-
Unaa tbe otbar whkb Snt aMnnad fam
end ar|wbid iltaUty, bm lb* fnttStoa
OH. t.]
ORIGIN AND ADOPTtOS OP TBE COXSTITUTION.
SOS
WM detarmincil by the circumstAnos
vhiiii iD»d« tlic one or the olher tbe more
1^ tmmcdiua nerd. For >U practicxl pur-
I tlity niiiy bt ragnrdail u Imvln^ Imwii
DulUUMu In origtai uii] m haTlug
trim m vnquimtiotujig ognrietiaii
[ tbc peoplo tbM each wm mentUl,
1 that bodt «ai« to nm |walla1 to wch
r faukSniUlr.
Sack WM the tyitem wbtob wm toxrni
1b Emm wbra the Confutation of the
UidtH Strtw «ip«Md«l the Artidm of
tConMtntko. Tbineeo State* wen in
|«)Cl«tanoe, each oT which had Its aubJivi-
tor oeuiitin, towns or parishn, ettje^
I boroogtu, and vilkgN ; and ill tbea* poa-
■OB powen of local ocotrol mote er Ina
^•XtmiTe. Tbe mott ol the SMUs had
•WAed now connituUon* vhli^h neog-
j.glnd tb«« mhdiiiiiooa, witltout, how-
anr, m a rale, nakiag tbdr perpetuation
In MtpaM tonni iMpKailn. Witb tbit
nragalticni tbejr mnainod and stUl tHnalB
• patt or tbo Jiniericnn «y*tna m in colo-
nU tlniM.
It may be well now to ate wbat b th«
thaerjp of State cnn«tltntlonal law tagatd-
[bg tli«K poUtio*) entitii*. Ufion Ikl*
^■dgeet it ha* notcflro hem nentnil to
\ta»mim mj cloMlr ilio limiutioua, if
[ tay tktnt an-, upon Stale power, btcanaa
I the State b>n grnenll; aMained b««n «a-
LMtting any vnniual authoritf, and baa
t-«MkflMd Itatlr lo tlial tmnwRiorklly ex-
I'trdaed. CmUId prinripin, howerrr, have
bran often hid down b; the eovrta, to
wbieh allention nay be bore directed.
1. tht Mm*\ |[OT*rnn)ont ta «n* ot
tmnmraitd pmerri, tho Cbnilitntion being
^tba mcaaon tbtteof, and tb« powtn not
tbenby btinH nattred to tlio
ladlridnal 9W«a or to the paopla. Thla
w« natd not enlaip upon hern, or clta
Mher aatborrtjr tar tban tbe book bofot«
na.
3. Tte fiowfts of aorenigntj' aot tbua
Lajigatod nat tn the people el tbo Indi*
[vtdoal Stately wbo confer the ame for
' Dtdfnarj fxwdne, with nicli eioaptlona
ud HmHattow and nndtr ancb regnlalioa*
ai Iboy « lie to c*tabli«h, upon the dr.
partntcnti and olMi.'(ini of jpirenunent
tthlch by tbi>ir cunntitution* tbey create
lor tiie Stal«a ^Mpcctiv^ly.
3. The mntildpal organitatlona eier-
cIk a ddqeitad authorily luidertke SIaU,
and may alto ba n^tded ai f^Tcminoiita
of tsmncnted powrn. The i>tat« lnjila
tt*e uithotitythapta their ohaitcnacoeed.
In^ to It* vltiw of what ia proper and
politic, and it detctiniMa thalr territorial
•stent. And npon both tiMaa anhJMla It
enrrlM* a discretion lo mUt^ diminiah,
or wholly lake away what It haa confcrml.
In the rye of tbo Uw they are mcro
■geucin of tlie State, omtrd and em*
ployrd (or the eoBvonicnce of ({oTomment,
and ibc Siatf may Ihrrcfoni wt aaido tbdr
arllon wlirn the [mrpote of tbelr creation
il being diitregaRlvd. or cxercue a oompnl-
aoi7 aathority over th^m whrnevor dutioa
are negleetad or anwU*)y, neglixnilly,
0* dIahonttUy ptrfoitMiL See Booth p,
Woodbury. SJ Conn. 118 ; Froet a, Btl<
mont. 4 AUm. IGl ; Pet(t>bu)]( •. Ueli>
k*r, SI III. SCS ; UtUna r. Walker, SI
III. eOS ; Commonwnlth *. Fitttboi^ St
renn. St 48S ; Abondtnth •. OrMawlch,
£9 Conn. SSfl ; Kew I^ndon a. BnlBud,
83 Conn. US ; Bailey v. Kew Toek, S HiU,
531 : Peoplo V. Dmpor, Ift S. Y. Mi;
Weeka V. Bfllwnukcr, 10 Wla. 3» ; la-
dianapalU r. CxImI, IB Ind. U4 ; Slate
V. 8t. Lonb County Court, 81 Ho. STS ;
St. LmiU r. AUm, 19 Hol 4M; State ».
Ccnnui, » Mo. 330 ,' McKInt «l Odorn, S
BUiid, 407 1 HitrriMn Jutltta a. Holland,
a Gnt. SIT : Milli vl WlUiama, II Irad.
KS; Langwortby p. Dnbnqstv IS Iowa,
Sn ; Bute K Bnurin, 8 Zab. 4M ; Aapln-
wall r. Cenmlaikmc^ SS How, Ml. In
noao of the Statai^ kowertr, bM it beea
hitherto vadcntood that whMi a MiiAicl)pal
datt«i' *u taken away, tha aserdM of
local aathority lenaJDaeed with 11: on the
contrarr, same general rvla for lootl gtr-
eramcnt haa bam nnlnnal ; the apcclal
ohartcn baee only ocnlNnd apecUl i<riv.
Utge^ which when taken away reinitted
tiM ocvporatora to thair pratlont oondltMft,
2M
CONSTITUTION OP THE ONITED STATES. [UOOK HI.
wUoh WM oiw in vhich thej cxcrdaed un-
der woU-niidcMood pilnd|ilM Uio v»aA
powon of local nfculatioo. For a StaU
wholly la ulv avsj tnat my «f iti |«opte
ifccat powen ««nld he not aoljr aniiiceo-
dcuUd, bat would b* to cntinly oppoiod
to Uu> oonunoD uadenUiniUMg of tha omii-
Mr in wliiuh Ilie powon of gorcniiKKt
trtra to b* •ppwtioned tad exN«i«ed with-
in the Stale, that iho uithorit; to do *o
could iitii Jniitly b« wgiriliid m wlthiu any
grant wliicli tli« fwopU oT the Suto have
nude of the Icgiilatii-e aathority to their
KprMViitativca. lo other wonla, Ibv riKht
of lor«l wir-KorernniMkt it m iwlvtrwltjr
UDil«nt«od and coDcodtd : it> utnise Iim
alwayi been m entitel}' withoat ipKBtian ;
to diiipitnin with It wouM n^quirc «&il >c-
coiufilish 8u ciiuiplrta a rtTolutiou iii
tilt public Kliuiiiiitntioai, involving, u
ibouijhliiil mrn brlievo, the dettrnrtion of
th« chinf jirap Mid mpfioit of our Mft-
ilm, — lluit iu pBffwutd contiBuancc luuat
be nprded w haiing btcn within the
MUtenplatita of Um people of trtry Sul(v
whin they ftwneJ theit Conrtitution, and
that ItwtnimnnI nusl b« nia4 and Inter-
[nvtMl aorordiiigly. Local wtr-gi>Tani-
ncnt it cuainqomtly matter of cuiuLitu-
tioiiul right, anil the State cannot aboliah
it uid rngulot* tho local aUin thtangh
•gtnta <4 ila own appalnlmtat.
i. CMiiiih««daaooqKU«lioni^ the BU-
nkipalittM bar* a tw»-(bld upott. Thejr
aio agmlaof th* Stale in gorenunent, and
thej alw bar* otpacUy to nwka oonttacta
and Miiniie property, W maj h» Medful or
doHMble is pnnding Moh local WDrta-
Imom bt thtir oorponlor* m ntaj li* <aa-
t«iaptat(4 by tb« bw« under which tber
*xi*t. 2 K(«t, S7C ; Aag. A A. on Coirp.
f Hi ; Beyndda e. Stark County, i Obiiv
SOi. Xt mtn oorporaliotti, buying tiM-
Inotlng, holding, and lm|iroTins pmfwity,
they*» tUitbd to tha aama pratn-tlon >a
all other carpirationt, anJ tlia Slate can-
not lake away what lliey aoiinire, nor de-
Tota to (onlfn uaea that which Uuy turo
pr«vuM (or the oamnicaR «f their peo-
pl*. Daiinuiulh CoUcp «. Woodwat^ t
Wheat, ees, SM, BBS ; TniMna v. 1^
inao, 18 IlL SO. A chanxa In corpatala
boundc a ■MtdifintioM of oorporalemdwr*
ity, and wnetimaa other cinnunMaiMM
toaj niak* it oeceMuy for the State to in-
torrtna, aad by vlrtaa of tti aoreraigK
poovrtotaka ponaaHOo of corporBla prop-
erty with a view t« it« fovpcr apptopria-
tion or dividon ; but when die ihall do
M^ il will b* a* InlKaa mcMly, and hrr
duty will be to tuaka tha apfeopriatlo*,
not Dthitnirily, but with du« rvgard l» the
pBipoae* ttf ita aeqmitiou, *o that the
r«apl« MDCfnifd ihall atfll iMp the facne&t
thereof •(> far aalhacitviiMUanoaa and tho
natitt« of the <b>i! will admit.
But while tlio corpontiani exiit, though
the State may lay down mlaa for the ngo-
latiou of Ihrfr aJIain and tb* manigttnt
of their property, it ia MTettbeleaa a part
of lb* right of wlf>go*«tnni«nt that the
INufdn oonoamad ahould choow thdr own
oflWra who an lo adinliiitttf anch nlM
and have tha on of tiieh pcoparty, wki
Ibc State cannot appoint neb offioR^ u
it night tbuH whoar* to ptrfona dntin
or a more gonotal nature for tlie pnblte at
large, inch ai mnitartqg or diB;ipUi>itig
thu State militia, enTotdng the State health
and poUo* law% and tha like. See VTarwr
r. Faofl1^ S Dmio, 975; Faopin v. IlUke,
tt Barb. 9 ; 8UU *. Kaiiyon. 7 Ohio,
a. S. &!«.
Such w* believe to be the true doeliine
tvgwdlog tbaae nnaldiialiitM. 1n*laMi«
hare peihafB ooaumil in which lagiaUtir*
boditgh under tha Utkf ibal IntMfsmKo
in local mattan wsa eacnlial (o the cor-
nctios of local ahuaea, bare diotgardad
the nnnl boiinda which limit tbtir actio*
ia thi( dirroticM, and taken npoa Ihm-
aelrta the parfonuanc* of datic* not pcop-
erty pcctaining to the tenlnl authoKty.
Whether, if tbb ndgbt rightfully be done,
it would be likely to mntt In oorreeting
mor* abiMC* than it wodU <*«at^ fa nut
for u to *{>«<inlaio ; 11 la elMwgb that vir
inatilutioai itBl <i]»n an anYptanco at the
doiTlriBe that mall^ra purtly local an boi^
mart ewwMiiiorily, bonaatly, and offieiently
CE. I. j
OBionr ihd adoption of the coNartTDnoii.
205
numi^ b; ths people immadiktslj con-
eernad, who cut lee and knov Mid com-
prehend uid penoiuUl; raperriee Ukid,
•nd that the local oonunimitieB ehoald be
expected to rely upon themaelTei tor the
eomctioQ of local cTJla, and not upon any
diitant, imperfectly infoimed, and ilightl;
interested body, which, while open to the
iame temptotioii* m the local authoritiee,
would be neither nnder the like reetraint
of intereat, nor inbject to have its doinga
ezpoead to the same watchfnl obaervatiim
of the partie* concerned. C.
206
QX OF THE UNITED STATES. [dOOK DI.
CHAPTER n.
OIUKCTIO.VS TO THE CONSnTCTION.
§ 281. Let it not, however, be supposed, that s Constitntioit,
which is now looked upon with such gcnvral t&ror and affection
by the pc-oplf, had no difficuttiv* to encounter at ita birth. The
hiatory uf thuM« times Is full of melancholy instruction on thin
subject, at once to admoniah us uf past daogcni, and to awaken
us to a lively 8cns« of the nt'ccssity of future vigilance. The
CoDHtitutiuD was adopted unanimously by Goor^gia, Now Jersey,
ai»] Delhw-arc. It was supported by large majorities in Pvnnayl-
vanin, Connecticut, Maryland, and South Carolina. It iras car-
ried in the other States by small majorities, and especially lo
Massnchuactts, New York, and Virginia by little morv than a
preponderating vote. ' Indeed, it is believc<l that in each of tlicse
States, at tbe first assembling of the conventions, there was a
decided majority opposed to the Constitution. Tlie ability of the
debater, the impending evils, and the absolute ncce-ssity of the
case, seem to have reconciled some persons to the adoption of it,
whose opinions had been strenuously the other way.^(a) "In
oar endeavors," said Washington, "to establish a new general
government, the contest, nationally txinsidered, seems not to have
been so much for glory as for exislcnco. It was for a long time
doubtful whether wo were to aurvive^ as an independent republic,
or decline from our Federal dignity into insignificant and with-
ered fragments of empire." •
§ iS'i. It is not dilBcult to trace some of the more important
causes which Ivd to so formidable on opposition, uud made the
ComtUiution at tlint time a theme, not merely uf panegyric, but
1 a Pltk. Hkt. to. 208, tn. 379; 381; North Amtt. Her. OeL. ISST, Vf. \t6
to 378.
* 2 Pilk. Hitx. SCO. 349. SSI; S Mjutk. Lift of Vuk. 183, ISS, 188.
* $ lUnWl'i LUb ut Vailupetaa. 1S8.
(a) Sm BiT««. UTo of Uaiioa. ch. SC; 90; Tu Bnm, PaUUetl PMtiM, S7 :
BiMBMod. Foliliotl Hlitocr of Nt» Autln'* Uf* of Otny, IL cfc. 3 aod 8.
York. <k 1; life ol SudimI Mud*, th.
CB. n.]
OBJBCnONS TO TUB COKSTITUTION.
207
ot severe invectivQ, aa fraught wiUi the most alonniog dmngen
to public liberty, and at onec uni'qual, unjuat, uod opprcwive.
§ 263. Almoat contcmporanoously with th« tint proposition
for ft cmifcderetion, jculouaica bv^ii to bo eatertaiuctl in respect
to the nature and extent of the authoritvjrtLiclL£hiiuld-bc-CJL££=_
Ljiiaed T>y tjienatiMrar govcruiuent. The large States would
Lnatumlly feel tliil iu proportion as Coii|iTe«s sliould exercise
leovereign powers, tJieir own local imimrtance and sovereignty
Ivould be diminished injuriously to their general influence on
other States from their strength, population, and character. On
the other hand, by ao opposite course of reoisoning, the small
States had arrived noarly at the same result Their dread seems
to have been Ifist they should bo swallowed up hy the power of
the large States in the general government, througli common
combinations of interest or ambition.'
§ 284. There was, besides, a very prevalent opinion that the in-
terests of the several States were not the saoie; and th<>re had
been no sufficient experience during their colonial dependence and
intercommunication to settle such a qucfilion by any p^nerat rea-
soning, or any practical results. During the period, therefore, in
which the confederation was under discussion in Coogress, mncb
excitement and much joalousy were exhibited on this subject.
The original draft submitted by Or. Franklin, in July, 1775,
contained a much more ample grant of powore than that actually
adopted; for Congrt'sa wore to be invested with powei; to make
ordiouuces relating "to our general eommerce or general cur-
rency," to establish posts, &C., and to possess other important
powers of a different character.' The draft submitted by Mr.
Diokeitson, on the 12th of July, 177C, contains less ample pow
crs, hut still more broad than the Articles of Confederation.*
In the sulwciuent discussions few amendments were adopted
which were not of a restrictive character; and the real diflicul-
ties of the task of overcoming the prejudices, and southing the
fears of the different Stat4.>a, are amply displayed in the secret
jotlmals now made public. In truth, the continent soon became
dividvd into two grtat political parties, "the one of which oon-
tcmplalod America as a nation, and labored incessantly to invest
) 5 lUnlMir* Ur« «f W.AlnctOD, ISO, ISli 1 lUlot'i lM»tm, Ao.
■ 1 Secnt JMmali, 385. Art. y
• u.,s»o.
208
cONBTmrriON or TaB trsrre» states. [book m.
the federal bead with powers competent to the preserrataon of
tbo Union; the other attached itaelf to the State authorities,
viewed all the powers of Congrnas with jcilIoubt, imd aascnted
reluctantly to measures which would enable the head to act in
any renpect indepndently of the members."' During the war,
the ncce»siliea of the country coufined the oporiitiona of both
parties within cumporatiTcly narrow limitit. But tlic return of
peace, and the total imbecility of the general goTcmnient, gave,
OB vc have scon, increased actirity and conGdcooo to both.
§ 285. llie differences of opinion betweea these parties were
too houciit, too earnest, and too deep to be recoociled or sur*
rendered. They equally pervaded the public councils of the
States and the private intercourse of social life. They became
more warm, not to ssy violent^ as the contest became mure cloee
and the exigency more appalling They were inflamed by aaw
causea, of whicli some wore of a permanent, and some of a tem-
porary eharaeU-T. The field of urgimicut wm wide ; and osperi-
cncc had not us yet famiahecl tbo advocates on cither side with
such a variety of political t««t(i aa were caleuluted to satisfy
doukta, allay prejudices, or dissipate the fears and illusiuns uf
the imagination.
§ 286. In this stato of things tbo embarrassments of the coun-
tr}' in its financial cotioems, the general i)Ocuiiiary distress among
the people from the exbanstiug operations of the war, the total
prostration of commerce, and the languisliing unthriftinvss uf
agriculture, gave new impulses to the already marked political
divisions in the legislative councils. Efforts were made, on one
side, to relieve the pressure of the public calamities by a resort
to the issue of paper-money, to teuder laws, and instalment and
other laws, having for their object the postponement of the pay*
mcnt of private debts, and a diminution of the public taxes. On
the other side, public as well as private creditors became alarmed
from the increased dangers to pro]>erty, and the increased facility
of per|*ctratiog frauds to the dcatructiun of all private faith and
credit And they Insisted strenuously upon the establishment of
a government and aystem of laws which should preserve the
public faith, and redeem the country from that ruin which slwai-s
follows upon the viutation of the principles of justice and tliQ
moral obligation of coQtracta. '^At length," we are told,* "two
> 6 Mmh. lit* of WHUaftm, 39- ■ « 9 Hanb. Ufa of WMhingtieii, O^ i
CB. n.]
OBJECnOira TO THE C0S8T1TUTI0!!.
209
fjeat partira Terc formed in every SUtc, which were distinctly
marked, and which pursued distinct oltJL-cta with systematic ar-
ranftcmcnt Tint one stni^'i^lcd with uualMted zeal for tho exact
obsorvuiice of public imd pri\-»t« (rU|nt^moikt«. The distrcwvs of
individuals were, they thoufdit, to be allcvintod by industry and
fnif^lity, and not by a relaxation of the laws, or by a SAcrilivo of
the rights of others. Hiey were conseiacntly uniform friends of
a regular administration of jostico, and of a vigurous course
of taxation, which would enable the State to comply with lis cn-
gagcnxMits. Hy a natural association of ideas, tliey were also,
'vith very few exceptions, in favor of enlar^ng the powers of the
federal government and of enabling it to protect the dignity
.and character of the nation abroad, and its interests »t home.
The other party mnrked out for itself a more indulgent couraei
They were uniformly in favor of relaxing the administration of
jufilirc, of affording facililica for the payment of debts, or of kus-
peading their collection, and of ri'iiiittiiig taxes, llie some
ie of opinion led them to rceist every attempt to transfer
from their own hands into those of Congrrss powers which were
by others de«u)od essential to the preservation of tike Union. In
'many of the States the party last mentioned mnstitiited a decided
majority of the people, and in all of them it was verj' jjowerful."
Htich is the language of one of our best historians in treating of
the period immediately preceding the formation of tJie Constita-
^t)0^ of the United State*.'
§ 2H7. Without supposing that the parties here alluded to wore
in all respectA identified with those of which wc have already
I (pokca, as contemporaneous with the confederation, it is easy to
Iperocire what prodiKiotm means w(>ro already in existence to
^oppose a new constitution of government, which not only traos-
ferred from thejltatcs some of the higbcat sovereign prerogatives,
/EuTTnid prohil'iliona upon tjio^^xereise of other powers whici
' frttil^ that liiuc 1» pfimteiisinfi <;ip^f 1«ptihw
der, indued, Is not, under such circumstanocs, tliot the Constitu-
tJOD should have encountered the mmi ardent op]>o»itiou, but
"that it slKjtild over huve l>eon adoptiKl at all by a ninjority of tho
States.
§ 288. In the con\'cntion itself which framed it there was a
great diversity of judgment, and upon some rital subjects an in-
iSMatwSU>nhAU'>lil««f WwluiigtM, IH^ ISl.
vol.. 1. — U
210
oossrrnmos op toe trarrEo btates. [book in.
tenae and irreconcilablo hoetilitjr of opinion.' It is undentood
that at aereral periods tlio convention w«ro upon th« pc^t of
breaking up vithuut nt'compIiohiD^ anything.* in tbo State
conventions, in which tlic Cou»titutiun wiut pn.>scut«d for ratifi-
cation, the debates wen; louj; and animated and eloquent; and,
imperfect as the printed cullectiona of thiwo debates um, enough
remains to establiah tti« consummate abilit}- with which everj part
of tlie Constitution was siicocitsivel}' attacked and defended.* (a)
Nor did tlio struggle end here. The parties which were then
formed continued for a long time nfterwards to 1>e known and
felt in oiir Ic^slntire and other public dclil>Gration8. Perhaps
they have never entirely eeaiHH].
§ 280. Ferhapa, from the very nature and oi^niKation of our
government, being partly federal and partly national in ila ehar-
aoter, whatever modificationa in other respects parties mar on-
dergo, there will forever continao to be a strong line of division
between those who adhere to the State governments and thoso
who adhere to the national government, in respect to principles
and policy. It was Umj^ at^o remarked that in a contest for
power, " the body of the [>foplo will always be on the side of tho
State governments. This will not only result from their lovo of
liberty and regard to their own safety, but from thestronK prin-
ciples of human nature The State governments operate upon
those familiar personal concerns to which tho sensibility of io-
diriduals is awake. The distribution of pri\'ato justice in a'
great measure Ijclonging to them, they must always appear to tho
sense of the people as the immcdiato gtwrdiaos of their rifj^its.
They will of course have the strongest hold on their attachment,
respect, and obedience."* To which it mar bo added, tliat the
State govcniments must naturally open an easier field for the
operation of domestio ambition, of local interests, of personal
> 3 Pitk. HIM. 815 to ISO; Dr. rnntklln'i Sp**A. i Kmtr. Miiatum, Ml. SH; S
Amor. Miutnia, i% 6«, TH, IS7, HO, SM; t Rtliut'* DtImIn. Thrat fiipmbtn of tiM
oui*piiliOD, Mr. Omy of UnaMliiiatlU, uid Ur, U—on and Hr. BaniUdfdi at Va-
gfaiia, JtwliiMil rigning tlio Conwlnitiini. 3 Anwn UoMim, Sft. Sco abo Mr. J«y's
Ltttw in I'STi S An«r. Hmmto, CSI U M&.
■ G MuihoII'* I.UB et Vtuhingloa, 12S.
• I Pllk. HUt. 9U to 2S3.
* G«m. Haniiltim't ^wtxh in ITMi 1 AaMT. lliUBan, US, 417. 8m ■!•> Hip Fed-
tniUt. Sm, it. si. i\ 40.
(a) BItm'i Lift or HadiMa, cL S3 to 8«.
CH. n.]
oaiBcnoifs TO the ooKSTrrirnoN.
211
popularity, and of fiatberiiig influcnci; to those who have no eager
de«)ro for a wide8pr««<l fame, or no acquirements to jiwlify it
§ 290. On (he oth<:T hand, if the vot(Lrii<8 of the national gov-
ernment arc fewer in number, thi-y aro likcty t« enlist in its
fftvor men of ardent ambition, compn.>hi'U8ivo views, and power-
ful genius. A love of th« Union, ft seniw) of its importuncc, nay,
of its necessity, to secure permoncuco and safety to our putitical
liberty; a consciousness that the powers of the national Consti-
tution are eminently calculated to preserve peace at home ajid
dignity abroad, and to give vahic to property, and system and
hannony to the great interests ol agriculture, commerce, and
manufactures; a consciousness, too, that the restraints which it
imfiosoii iijion the Staton are the only efficient means to preserve
public and private jiistici^, and to insure tranquillity amidst the
conflicting interests and rivalricH of the Stated, — ^ these will
doubtlesn combine many Boher and reflecting minds in its sup-
port If to thia number wo add thoens whom the larger rewards
at fame or emolument or influence, ccnmocted with a wider
Bphere of action, may allure to tbo national councils, there is
much reason to presume that the L'nitm wilt not be without
resolute friends.
§ 291. This view of the subject, on cither side (for it is the
desire of the commentator to abstain, as much us possible, from
mere private political six^eulation), is not without its consola-
tions. If there were but one consolidated national government
to which the people might look up fur protection and sup])0rt,
they might in time relax in that vi^lance and jealousy which
seem so ueticssary. to the wholesome growth of republican institu-
tioui. If, on the other hand, the 8tato goveniments could en-
groM all the affections of the people, to tlte exclusion of the
national government, by their familiar and donM>stio regulations,
there wotildlw danger that the Union, constantly weakened by
the distance and discouragements of its functionaries, might at
last become, as it was nnder the confederation, a mere show, if
not a mockery, of soverpJirnty. So that this very division of em-
pire may in the end, by the blessing of Providence, Iw the means
of perpetuating our rights and liberties, by keeping alive in every
State at once a sincere love of its own goremincnt and a love of
the Union, and by cherishing in different minds a jealousy of
each, which shall check, as well as enlighten, public opinion.
212
coxsTiTtrnoit op tbb tiKirsD btatbs. [book m.
§ 292. Th« objections raised against the oiloption of the Con-
stitution were of very different nnturcs, and, in somo itutuoocs,
of entirely opposite characters, lliey will be found einbodiiil in
rariouD pul>lic documents, in the printed opiaions of di«ti uguixhed
men, in thi; dfihateo of the respective State oonrentioiui, and in
a Btili more authentic shape in the numerous aniendments pro-
pOB«d by these conventions, and accompanying their acts of ratifi*
cation. It is not easy to r«diic« them all into general heads;
but the most material will hero be enumerated, not only to ad<
moiiish us of the difficulties of the task of framing a general gov-
ernment, but to prepare us the bettor to uuderatand and axpound
the Constitution itscU.
§ 298l Some of the objections were to the supposed defects and
omissions in the instrument; others were to the naturu and ex-
tent of the powera conferred by it ; and others, again, to the fnu-
damentsl plan or scheme of its or^nizstion.
(1) It was objected, in the first place, that the echemo of
govommvnt was radically wronfi:, because it vaB not u confed-
eration of tlio States, but a f^jvcmnictit over individuals.^ It
was said that the federal furin, wbit^'h rCRHrils the Union as a
confederation of soTcrcign States, ought to have been preserved;
instead of whioh the convention had framM) a naltitnul iiovem-
ment, which regards tlic Union as a consolidation of 8talca.'
This objection was far from being universal; for many admitted
that there uiitrht to be a government over individuals to a certain
extent but by no means to tjic extent proposed. It is obvious
that this objection, pushed to its full extent, wont to the old
question of the confederation, and was but a rcargumeut of the
point whether there should exist a national govcrnniout adequate
to the protoction and support of tho Union. In its mitigated
form it was a mere question as to the extent of powers to be con-
fided to the general gnremment, and wan to be clattAed accM^-
ingly. It was urged, however, with no inconaidenil)lc force and
emphasis; and its sapporters predicted with confidence that a
government so organized would soon become corrupt and tyran-
nical, "and absorb the legislative, cxecuti>v. and judicial |)owers
of the several States, and produce from their niins ono ooiwoti-
dated government which, from the nature of things, would bo an
1 Thn Fcdcrmltft. No*. SS, SO : 9 Ani*r. HtunaiE. ttZ ; H. StS, SIS.
■ The r«d«i>lbt. Ho. »; M. No. »; 3 Ptth. HM. 270, S73.
CH. U.]
OBJKCTioKs TO THs oomrnunoH.
218
iron-lianded dcspotigm,"' Uniform experience, it waa aaid,
had dfinoiutniteil ' "'tliat A very extenBlvo territory cannot be
governed on the principles of fi-ecdoui otlicrviBt than hy a con-
federacy of republics, poescAsiug all tlie powers of internal
)n>vL'mmcut, but united in the mau^emcnt of their general and
foreign cuuecrtu. " ' Indeed, any »chciue of a geneml government,
however guarded, appeared to some minds (which poMcs»<»l the
public conTidonce) ito entirely impracticable, by reason uf the
extensive territory of the United States, tliat they did not hesi-
tate to declare their opinion that it would be deatructive of the
oiril lilierty of tiie chi?Ains.* (a) And others of otjual emiueuce
foretold that it would commence in a moderate aristocracy, and
end eitlier in a monarchy or a corrupt, oppressive aristocracy.'
It was not denied that, in form, the Constitution was strictly
republican; for all ita powers were derived directly or indirectly
from the people, and were a<lministered by functionaries holding
their offices during plea«uns or for a limited period, or during
good beharior; and in these respects it bore an exact similitude
to the State govemmonta, whose republican character hod never
been doubted. •
I S04. But the friends of the Constitution met the objection
tif tMCrting Uie i»dis|>ensable necessity of a fonu of goYemment
like that proposed, and demonstrating the utter imIwciUtr of a
mere cooCederation, without powcra acting directly apon indi-
viduals. Tiiey conaidered that the Constitution was partly
federal and partly national in its character and distributitMi of
powera. In ita origin and establiahmL'nt it was f<^'dvruL' In
some of ita relatitnta it was federal, in others natioual. In the
ftwiate it was federal ; in tiio House of Representatives it was ua-
tional ; in the executive it was of a compound character ; in the
Operation of ita powers it was national ; in the extent of its pow-
* Addrtw of tbe UinoHty «f Psiuu ConrMtion. 1 Abht. MiMcam, 0)2, 6*3. 8m
■bo i Piik. nut STS, -ITt.
* 2 Anur. Mmmu, M. ■ 8m alM 3 AntN. Ubmiub, *i% tft, 4St.
* TalM Mil Luutn^* Cwter. S Awr. HoKdin, Itt, U7; Mr. Jay* Lrttar. ITftT.
S Amh. Hvmwii, SS4, M7. Tb* (un* ah^MikD i* nfiwtttllj tak<n notlc« «f ta tb«
F«Jiwlirt, M ou lh(B bcpiMiiig to b« ptmklnt. ^b f nlenliu, Ko*. 1, 9; 9. 1I|
l«.St.
* Mt. (hM|f MuMi't Lrtter, S Amor. Uiweuni, Ul. 030.
* Tlio rmbnUkt. Ko. 99. * U.
(>) Life at SrsimI Acbutu, III. 301.
214
COKSTtlimON OF TBB DNtTED 8TATSS. [dOOK HI.
era federal. linctcd on Individuals, and not on States mereljr.
But it« powers wi-n> limited, and Il-U a lar;^ mass oF sovereignty
in th« Stut««. In making ttmoudmcuts, it was also of a com-
pound i^liumutcr, rc<]uirlng tlio concurrence of more tliau a ma-
jority, and loss than the whole of the Hiates. So tliat on Uie
whole their conclusion was, that "the Coiistitutinn i», in strict-
ness, neither a national nor a federal Constitution, bnt a compo-
sition of both. In its foundation it is federal, not national; in
the sources from wliicli the ordinary powers of the government
are drawn, it is partly federal and partly national ; in the oper-
ation of these powers it is national, not federal; in the extent
of them, again, it is federal, not national ; and, finally, in the
authoritative mode of introducing amendments it is neither
wholly federal nor wholly nutioaal."'
§ 295. Time has in this, as in many other respects, assua(^d
the fears and disproved the proplicoica of the opjwuents uf the
Const ilutioii. It has gained friends in its progress. The States
still flourish under it with a salutary and invigorating energy;
Mid i(s )>oirer of direct action U]>oa the people has hitherto
proved a eonmiou blessing, giving dignity and spirit to the gov-
emmeot adequate to the exigencies of war, and preserving us
from domestic dissensions and uareasonable burdens in tioMS
of peace.
§ 296. (2) If the original structure of the goverrmient was,
OS has been shown, a fertile source of opixjsition, another ob-
jection of a more wide and imposing nature was drawn from the
nature and extent of its powers. This, indeed, like tlie former,
gave rise to most animated discussions, in which reason was cm*
ployed to demonstrate the mischiefs of the system, aixl imagi-
nation to portray them in all the exaggerations which fear and
prophecy could invent. looking back, indeed, to that period
with the calmnoHs with which a'e naturally revnew events and
occurrences which are now felt only as matters of history, one
is sur|iris<.-d at the futility of some of tlie objections, the absurd-
ity oi others, and the overwrooght coloring of almost all, which
> Tha PadnMlUl. ^o. S». Sm ftko 1 Tnckar'a n*rk. App. 145. 1*9. Th* >h<)U
mMuing oentabwl in Uif SMh nambn at Um FMlcnIitt (or wlikb lh« tlion u tntnly
ft wiii—ryl itexma « tborougfa nkmiiwtiaa by t-mj «Ut«an>n- S«« kin on tlie
M]nenb}ca. Dana'* Apr S II, ^ U, AcifSS. p. «t, ke.; 1 TOckta'i Black. Cmna.
An^ lis, b.i the FwlMlkt, So. Hi 3 D»U. B. 473.
ca. n.]
OBJBCTIOXS TO TQE CONSTITUTIOK.
215
were uif^-d on this licud aguiiiat tlio Coiutitution. That aome
of Uivut liul ft jiwt fouiidatiou need not b» denied or concealed ;
for the i!iv4t«!iti vras huiuaii, and the roKiiIt uf compruiniiuj and
ooucilitttioii, ill which soinelliiiig of ciirre<;tuL4» uf theurjr was
yielded to the interests or prejudices of particular States, and
BOniething of inequality of benefit Vime for the common ROod.
$ 2i)T. The objectiona from ditfereiit quarters were nut only
of different degrees and magnitude, but often of totally opposite
natures. With aome porsons the mans of the powers was a for-
midable ohjcction; with othera the distribution of those powers.
With some the equality of vote in the Senate was esceiitionable ;
with others the inequality of repreaenlalion in the House. With
some the power of rc|(ulating the tiinea and places of elections
was fatal; with others tlie power of regulating coniuKrce by a
bare majority. With aomtJ the power of dirtt^ taxation was au
intolerable grievance; with oUiera the power of indireet taxa-
tion by duties on im[K>rta. With some the restraint of the State
legialatiires frtun laying duties upon exports and paaning tx pott
facto laws was iucorroct; with others the lodging of the execu-
tive power in a single magistrute,* With some the term of oilifio
of the senators and representatives was too long; ii-ith others
the term of office of the President was obnoxious to a like cen-
enre, as well as hia re-eligibility." With some the intermixture
of the legislative, executive, and judicial functions in the Sen-
ate was a mischievous departure from all ideas of regular gov-
ernment; with others the non-participation of the House of
Bepre»>ntative« in the same functions was the alarming evil
With Bume the powers of the President were alarming and dan-
gerons to lilierty; with others the participation of the Senate In
soma of those |>owcr«. With some the powers of the judiciary
were far too extensive; with others the power to make treatJM
even with the consent of two-thirds of tho Senate. With some
the iM>wer to keep np a standing army was a sure introduction
to despotism; with othera the power over tho militia.* With
some the paramount authority of the Constitution, treaties, and
laws of the United States was • dangerous feature ; with others
> % Amer. Uiueum. &M, 5SS. 540 ; Id. 4X7, 43S : M. M, S5S.
* 1 Aner. Umnm. 03 1 3 If Ik. Hbl. 8S>. 3S4 : Tlio pMlenlbt. II<m. 71, TIL
• Ser 1 Amcr. Uoania, 431, he.. ; !<]. 4S5 ; Id. 4S4 ; Id. ^40, h^„ S43, Aw.; Id.
Cn i S Amn. HiUKun, U ; U. U7i td. 41», 4S0, 4e.
Sl«
COKSTITUnOK OP THE ITXITED CTATn. [b(M}K HI.
\ tll« snutlt number conipt^siug the Senate and the HouBe of R«p-
TMentativ«B wa« an alarming aad corrupting evil'
S 2(Ni. In the glowing language uf thoHe times the pec^le were
told, "thab tho new government will not be a ooofederacjr of
States, ag it ought, but one conaolidatcd government, founded
upon the deRtnictinn of tliR several govemmenta of the States.
Hie }iower9 of Uongreea, under the new C<Mistitutinn, are com-
plete and unlimited orer the puree and the sword, and are per-
fectly indepenilent of and supreme orcr tho State fruv(.Ttim<.rnt«,
whoAe interrontion in these great points is cutirolj- desirojcd.
By virtue of their power of taxation, Ci>ui;r«u) may command
tho whole or any part of tlie propcrtiw of Oie puuplc They may
impose wliat imposts upon commerce, tltvy may impose what
land taxos, and taxes, vxoisi-A, and duties on all. ituitriiiuents,
and dutifs on every fine article that they may judgu projM^r. "
'^Congress may taonop<jlize every sourev of revenue, and tJiw
indircM:tly dismulish the Htate (^vemiuents ; for without fujid*
th«y could not exist. " ** As Cou^tcm have the control over the
time of tlio appointment of the President, of the senators, and
of the representatives of the United Stall's, they roay prolong
their existence in office for life by poBtponiI^[ the time of their
eleotioo and appoint nn'iit from |>i;riod to peri<Hl, tinder varJona
preteoces." "When ihe spirit of tlie [leople shall W gradually
broken, when the general government shall be firmly establiithed,
and when a numorotis standing army ahntl render oppoaitioo
vain, Uio C'nngrcn may oompkite the system of despotism in re-
nonneing all dependence on the people, by continuing themselves
and their children in the govemnicnt"'
$ iii^X A full examination of the nature and extent of the 6b-
jections to the several powers given to the general govi^mment
trill more properly find a place when those poweni cumo succes-
•liely under review in oar commentary on the different parts at
the Constitutioo itwU. The outline hero fumishitd may sem
to show what those were which wurt pnscolcd against tbem M
AD ag^re^te or mans. It is nut a little remarkable that sMoe
of tiw OMMt formidable applied with equal foroe to the Artiolcs
ar la O* fMcnb^ H*. U, «ltb km
1 Muj of Um i»<wtl»i mt
M3,HI.H5. SM*l«(faiA4ln««(Tlqlifa,SMLBiiMr.«M.
a.mt
CB. n.]
OBJBCnOXg TO THE OONSnTDTlON.
811
of Confederation, with this differeiioe onl^, that chongli unUm-
itml in their terms, they wore in some instaaces checked by the
want uf power to carry tJicm into effect, othorwioe than by re-
quixitlouH un the Stutca Thus prcaenling, as has been justly
observed, the extraordinary phenomenon of declaring cert^
powers in tJio federal government ubaolutcly neccaaary, and it
the same time rendering them nbitolutely nugatory. '
§ 800. (9) AnoUicr oIosh of objections urged again»t the Coii«
stitution wa» founded upon ita deficieneies and umisaiona. It
cannot be denied that sonio of the objections on this head were
well taken, and Umt there was » fitnofls in incor|K>rating Bome
proriaion on the aubjeot into the fundamental articles of a free
government There were othor«, ajznin, which might fairly
enou)^ l>o left to the legislative discn-tiun and to the natural
influences of the popular roice in a republican form of gorero*
ment. There were others, again, so doubtful, bt^th in principle
and policy, that they might properly bo excltide<t from any sys-
tem aiming at pennanenoo in its securities as well as it« fgunda-
tions.
§ 801. Among the defects which were enumerated, none at-
tracted more attention, or «'cro ttrgod with more leal, than the
want of a distinct bill of rights which should recognize the fun-
damental principles of ft free republican government, and the
riglit of tlie people to the enjoyment of life, liljerty, property,
and the puniuit of hajFpiness. It was contended that it was to-
dispensable that express provision should be made for the trial
by jury in civil cases, and in criminal cases upon a prMontment
by a grand jury only; and tliat all criminal triaUabonld bo publio,
and the jiarty be confronted with the witnesfles against him; that
freedom of apircch and freedom of the press should be sectired ; that
there should bo no national religion, and the rights of conscieuco
should be inviolable; tliat excessive bail should not be required,
nor cnit'l and unusual punishments inflictt.'d ; that the people
should have a right to bear arms; that persons conscientiously
ncrapnlous slioul'l not be compelled to bear arms; that every
person should l)C entitled of right to petition for the redress of
grievances ; that search-warrants should not l>o granted without
oath, nor general warrants at all; that soldiers should not bo
enlisted, except for a short, limited term, and not be quarU-red
■ The Fademliit, No. SS.
218
coNSTmmos of the united states. [book m.
Id time of peace upon private boiu«s without the consent of the
ovn«r8; that mutinj' bills should continiu> in force for two years
only ; that caimes once tried by a jury should not be re^xamina-
hie upon appeal, otlierrise than according to the course of the
oommou Ian' ; and that the powers not expressly delegated to the
general guvcmmcut should bo declared to be rvserrud to the States,
lu all these partlculani the Oou^titution wa» obviously defec-
tive; and yet, it wu» contended, they were vital to the public
security. ' (a)
§ 302. Besides these, there were other defects rcHcd on, such
as the want of u suiUblo provision for a rotation in office, to
prevent persons enjoying it for life; the vant of an executivu
cotuK-'il for the President; the iraiitof a provision limiting the
durution of standing armies; the n'unt (tf a clause securing to the
people the enjoyment of the common law ; * the want of secari^
forpro{K-r elections of public officers; the irant of a prohibition
of inembi.-rs of Congress holding any public oRiocs, and of judges
holding any other offices; and finally, the want of drawing a
elear and diivet tine between the |>ower3 to be exercised by
Congress and by the States.*
S iOi. Many oi these objections found their way into Um
UMndments, which, simnltaneously with the ratification, wetv
•dopled in many of the State conventions. With the Tiew at
carrying into effect popular will, and also of disarming the o|>>
ponenta of the Coostitutiun at all reasonable prounda at eoa*
plaint, Conmess, at its very first seosicra, took into cunsidetatiaa
the atnendments so propo«Ml ; and by a snooeasioa of aapplenaeft*
tary articles providi^d. .in substance, a bill of rights, and secured
by coustitutiooal decUtatians m<Mt of the other impurtant objeels
tbtia aoggHted ThMo aiticlea (in all, twelve) were sduoitted
by Congress to the States for their ratificatioD, and ten td tbtB
were finally ratihed by the teqoisite number o( States, and IfaoB
4St to 4M; 14. *A fc-: ti. SM. «K. IM^ H*^ k. na, Ac.
•>i M. u;; M. ua^ <]ai «ft,i ite Fiihwin. Sm. at
< 1
■ lit.
»t±Mf^1iMiwm.tU.ia»: 14. SU. nr; U. S*^ SB7: 1
U. »». aOk «<^i S Pick. BM. 313, ST, ai^ «t IB^ S4.
«riU«aM^LSlS4.
a.m.i
v«bb m. ft n SO: I*
CR. n.]
OBJornoNS to the cokstitution.
219
^became incorporated into ttie C(U)stitatioiL*((t) It is a curious
ctt however, that, althuu^ii tlio necessity of tIie«o amendments
bad been urged by thu oncmios of tho Coostitutiua and denied by
tta frit-ndii, tliey 4^ncuuIlte^ed scarcely any ottior opposition in
tlie f^lHtv legislntiinM Uiaii what was given by the vert- purty
whicli had mt8«d tlie objections.* The fricod» of the Constitu-
tion generally supported thorn opon the ground of a largo public
policy, to quiet jealousies and to disarm rescntjnents.
$ 804. it is pet^aps due to the latter to state that they be-
lieved tliat Bonio of the objections to the Con:4titution existed
only in iniagi nation, and that others derived their sole support
from an erroneous construction of thai instrument-' In respect
to a bill of rig:hta, it wiui slated that several of tJie Stat4 oonsti-
tutiona contained none in form, and yet vere not on that accomnt
thought objectionable. That it was not true that the Constitu-
■ tion of the L'nitcd States did not, in the tnie sense of the terms,
Ccmtain a bill of rights. It was emphatically found in those
clauses which respected political rights, tbo guaranty of repub-
lican forms of government, the trial of crimes by jury, the defi-
, nitiott of treason, the prohibition against bills of attainder and ex
ypottftmto laws and titles of nobility, the trial by impeachment,
and the privilege of the writ of habeas corpu*. That a general
hill of rights would be improper in a Constitution of limited
powers like that of the United States, and might even bo danger-
ous, as by Containing exceptions from powers not grouted it
tuiglit give rise to implications of constructive power. That in
a govemmcut like ours, founded by the pi-ople and managed by
the people, and especially in one of limited authority, there was
DO necc«sity of any bill of rights; for all jxiwers not granted
were reserved, and even those granted might at will be resumed
or altered by the people. That a bill of rights might be lit in a
monarchy, where there were strugglea iictweon the crown and
the people alw>ut prerogatives and privileges. But here the gov-
ernment is the government of the people; all its olhcersara their
> 3 ntk. But. 393, »l.
■ i lUnb. LiTo of Vfih. Wi. 3M,
• B tunk ur« rf WMh. SO), tie.
(a) ThoK* uMMdatmEa aim prapMtd lif« of UwHaen, II. SS, <««■;. : Ulb <f
and k1t«mwi1 b; Mr. Hadtwn, Ihiaagh FU»r Amm, I. it; Vn Bokb, Political
l«h0M tdiirt* ia the miia tlinr puMg* Fwtk*. I»l. i Mf. ; Huailuo, HtaM;
Ittnnj^CoagNMwuMcitml. SaaBifc^ ot tha BapaUic, IV. at.
290
cossTrrcmoK of tob dkitkd btites. [book hi.
ofGccrB, and they oah ozercise no rights or ]>ower« but soch a«
the people commit to tlicin. In such & cue the silence of the
OonttJtution un<uv« nutliing. The trial bv jurv, the freedom of
the press, And the liberty of conscience are not taken away, be-
caiiHG they are not secured. Thoy remain with the people among
the mosa of im^ranted powera, or lind an appropriate place in
the lawfl and institutions of each particular Htato. '
§ S05. XotK-ithstanding the force of these Bu^gt-stiona, candor
will compel its to admit that, a» certain fundumi-ntal rights
were secured by the Constitutiun, there KL'vmPd to bo an equal
propriety in Mcuring in like manner others of equal valuo and
importance. The trial by jury iu criminal cnses waa M-curod;
but Uiifl cluuso admitted of more clear definition and of auxiliary
provisious. The trial by jury in civil casca at common law mm
aa dear to the people, and afTordcd at least an equal protection
to iJCrsons nnd property. The sanie remark may l>e made of sev-
eral other provisions included in the amciiilmenia. Hut these
will more properly fall under consideration in our commentary
upon that portion of the Constitution. The promptitude, seal,
and liberality with which tlio friends of the Constitution sup-
ported these amendments evince the good faith and aincerity oC
their opinions, ant) increase our reverence for their labors, as
well as onr sense of their wisdom and patriotism, (a)
> The Fedenlirt. No. U; Ur. it^ft Addixs; S Atort. Unanm, Ui, UO; S Anrt.
■ Hdmuk, Its, iSS.
(a) The OMMUtoika «•* MctftdluKl
pnt in Gwce in ntkipatiMi «f, ntd in re-
Uraet apon, th* adqitiaa of Umm UMiid-
B>Mt% u4 hf Htmo Ik iMtfnMM vm
Mni]>leir<L " I d-ell." m>U Mr. Cheats
' OB Ihil tiaa fnm ITdO to 1TS>, Iiumm
tlui wu onr tgt «f dvil giMtati. Tlira
tm m gm to be MM. U IfcM tia* oar
w— bom. TbM wbkh «MU U-
fore made lU Indepmicnt. Ooi
1ibt«ty, ow Is*, onr aider, ma ttaUn, «ar
th* Bcttou, Mr (Mgr ia Iba pval hiflnji
WB owe to UiM. Injeprmkaw wm tbe
nrk aT liic Ugltr pamimi. Tk Cmati-
tvtloa ■«■ Ikt alMr pndua t^ triadm.'
Lmmmw JiflWMii. Bd^ od Buitttea,
UB8.
OB. m.]
KATtnU or TQC CON'SItTtmOH.
221.
CHAPTER in.
KAmBB OP TBB CONSITItmON, — WBETHER A COMPACT.
§ 306. HAnxo thuB skctelied out a f^cml histoiT' oE the ori-
gin aod adoption of tiie Constitution of the Unitvd .States, and a
Aumiuarv of the principal olijecttons and difGt^iilticB which it liad
to cneonntpr, wo appronch the point at which it may he pn4>er
to enter upon th« consideration of the actiiaJ iitructure, oi^puiiia*
tion, and |»»-era which l)olon^ to it. Our main olijcct will hence-
forth Ite to unfuld in detail all it» principal prnviHiorin, with aucb
oommcatorics as may explain their imgwrt and effccti and with
euch illastrations, historical and otliorwise, aa will enable the
reader fully to undcnttand the objections which huvo been nrt^d
against cflch of tiium respectively, the amcndmcntD which have
boon prn)><»i-<l to them, and the orgiuaenta which hare sustaiaed
them in Oit-ir prcftcnt forin.
§ 307. Before iu'mg tliis, howcrer, it seems ncccasary in the
first placo to bestow some attention upon several points which
have attracted a good dual of discussion, and which uru prclimi-
nary in their ovra nuiurc; and in tlic next place to consider what
arc the true rules of interpretation helooinug to tho lustrumcut
§ 808. In the tirst place, what is the true nature and imgwrt
of the instnimeut? Is it a tr^atA', a convention, a league, a con*
tract, or a comjtact ? Who are tho pArties to it I By whom was
it made ? fty whom was it ratified ? What are its obligations t
By whom and in vhat mnnncr oiay it be diMolred ? Who are to
decide apon the suppoecd infractions and violations of it t These
are questions often- asked, and often discussed, not merely for
the purpuRC of tlieoretical 8{>cculution, but as mutters of practical
importance, and of earnest and even of vehement debate. The
uunrem given to them by statesmen und jtiriats ure often contra-
dictory and irreconcilable with each other; and tho consequences
dednced from tlio riews taken of some of them go very deep into
titc foundations of t]ie fiiovemment itself, und expose It^ K not
U) utter deatruction, at least to evils which tlire«t«n Us exlatcnott
and disturb the ju«t operation of its powers.
222
COXSTtTCrrOK OP THG DXtTED STATES. [BOOK tH.
$ 809. It will he our object to present in a condensed form
some of the principal exposilioRA which havo been infiistcd on at
different limes an to the nature and obligationR of the Conatitti'
tion, and to offer some of the principal objections vhich have
been BUgKeated against those expociitiona. To attempt a minute
enumeration would indeed be an impracticable task; and eonsid-
ering the delicate nature of others, which are still the subject of
boated controverst-, where the ashes are scarcel}* ret cold which
covte the concealed fires of former political excitemi^nts. it la
Buflicienlly difficult to detach some of the more Important from
the masa of accitiental matter In which they are involved.
§ 310. It bus been asserted by a learned commcnbitor,' that
the Constitution of the United States is an orijfinal, writteo,
federal, and social compact, freely, voluntarily, iiud solemnly
entered into by the several States, and ratiliwl by the peoplu
thcn-of, ri'S|R'ctiroly; whereby the several States and tlie [leople
tliereof rvsjiecttvely have bound thenuelvefl t^ each other and lO
the federal ffovemment of the United State*, and by which the
fedcmt government is bound to the several States and to every
cititen of the United SIuIcm. Hio author procc«dB to expound
every part of this definition at large. It is, saj-s be, a compact,
by which it is disliugnlshed from a charter or griiiit, which is
either the act of a superior to an inferior, or is foiuided upon
some oonsideration moving from one of the parties to the other, '
and operates as an exchange or sale.' But here the contracting
partii>9, whether considered as States in their ivolitica] ca|)acity
an<l character, or as individuals, are all equal ; nor is there any-
thing granted front one to another, but each stipulates to part
with and receive the same thing precisely without any distinc-
tion or differenco^+ietween any of the parties.
§ Sll. It is a federal compact* (a) Several eoreret^ and
> 1 TuchtrH Blade Cnma. App. aoU D. p. U6, <t «f .
* 1 Tuokcr'* BUck. Cowm. App. mU P. |k 141. *
* Hi. JcfftfsM HHTU ilitt Iho CooBUtntiM «f tb* rniled SMm I* ■ MKqwd bp-
l«*eii the atstn. ■■TWremufliiBtoaacwipMt.'Mj*^ i>a paptr^n%Md UW
(n) Ut. Calhniui hu tnki(>d npon te Uia Q«B«nl Guvwiiwmt." Vwfcfc YI.
the Tirw \im Ukn b^ Ur JHhraod In Ml Sn alio th* nrirw of tht* ■«(% by
t»« .Uk.r^i, (HtiMv: lli« "DiMMlne oa. Jodp A* P. T"-)-"- (I'ri.f^v,,,,. Vfc.
Uir I 3 (Dil Gonninntcf tbe 1M4)> If. ho*' rv-
Cbiu-1 .-...'^.' Work*. I. Ut; and the (fwtWwwUlw n^ i-r ■,....,,.>,."-« Uw
** AUrm •» the Rfkliaiu of Iha 8t*tM . of tmj pv^fU, It iddM bov be UoUd
CH. in.]
KATDBB OP THE CON-STmrnOX.
228.
independent States auy unite thenaelvc« together hy & perpetaal
coofedorntioQ without each ceasing to be a perfect State. They
I bf the bptlatarc of Viigiim u > •olcran pvolert, " whkti U tailed Um Cob-
■tittitiiw of tlw Ditlted St>t« of Amoriu, by vbich the; «grtod to luiil* in • liii^
gavwmaeut, w to Ui«lr rrUtlniu v{th facb, uid vilh tortl^i natloiui, uiil m to oMUin
othtt *rtMM putfeulari; ipecilitd." 4 JtR«raMi'« C»rrM|>. tIS. It would, t tini^c^
b* nty iliSooU to point o«t whon uid in vfait nuuia any wich coiii{«ot •■■ nadt^
TliD CODitttution wu ncjibct niido aor ratiSed ti; lb* BlatM « »oTen4^ti« at politlal
cotanunihin. It vt» (nuucd by a oaiti-«stMi, propoasd to the propto of iIm StatM
for tiuit ulapUoo bj CongrtM ; toid vm adojittd by Slit« MWVtstloM, — Um In-
tiMdkU Rfnnotilivwor Uib pMi[4«.
at pbictd beyond ftnthw oontro-
y, tbat lli« OMutitnliou «f tho Untied
Bum U ui iBiirammt cf gwrcnunrot, .
■gntd vpoB and txUUUtud in tha io««tsl
£tatc* \ij tlis p«ople thermit, tbroo^ ivp*
naenutina empuireml tur tlic purpo«(i,
t^vntire ujion the jmfilr iiidiTiilually
and «alloetively, and, Bttliin (be ijibne of
ita pomtt*. Qfiea th* gartnmiutt «S tb«
Slate aba. And tliat th« Union whinh
ia {wriictcd by ntnuiii of it i> indiBolnble
tkrtnigb any Mnpi conI«ntplatod by, or
■dMiMJbl* unditr, tt« (iroTiiion* or «n ^a
ptadpliM OS whioh it to basMl, aad oaa
onlj ha ovcrthnma by phyiiaal fbro* ef-
bttiiic a (rTolntioa, Soch haa beta tbc
' T<»« of tha Jodlclal ifepartmonl from Um
Brvt. and t^ praolioe M Ibe l(gi>latiT«
•ad oKx-DtiTn diipanin«nU ha* oon«-
■fOMded tbait^o; lEr Jtfftma faimicIC a)
Mr. Calhociii BKRiml^lty concadaa (Cal-
hoon't Wofli, 1. tif). harla« hilnl aa
PmbUnt to oBer pnctioal icottanoc la
tlili ouDHlnlalioa of An CMUtitDtkm,
And BMlly tin poapk of tk« OMiiitfy,
*bi« aooae of tlw State* ««dearoT«d to
tiMl th* ConktJlutlnn a* a comtMCt from
which ilKy migbi witbdi^w wli«n tb«y
dteined ita fvoriBona riolatad, bare re*
•irttd tbb doctrino with lb* uttnoat mi-
|vttdilnn of Milltarx foirai^ and at an
iOMDriiat aacriAM of Ufa aad troaMtv hart
orcrthren ita adlmwita. In tb« courla^
tlMRtoro. in tha Oakiiwt, in th« ULi of
Imialition, atui tn tha aibllnmral of
arnn. the satlonid vl«w ha« fawlatily
inrukd. It niay be added, alw, that
tfaa but 'gnat *tni|Kle baa had Ui« «0«rt
wbidi able mind* bad nilid[i«t«d *• tba
minll of lb* war |)m l.tf" nf OouTanmir
Jlorrii, III. VSa ; Calbuun'a Woika, ].
Sfll), —to atntigtben oonadenUy and in
aome direclloiui to cottend tb* national
BDllMd^. 8oinrlblii|i of thb haa Mma
from constilalional fhangra intioduMil
for tbi* exprnaporpoat: MniFthing fron
tlia great Incrtaao in folcral offloo, pal-
iMiegt^ and e3E|)«nclitur**; but morn lliaa
all from tbe pnUie mind broominK familiar'
Itcd wUb tho anploymeiit bjr the Mttal
goremroant of mmandou* dbwrtltonaiy
]»wen dariug tho axialane* «f hoMllitim,
■sd «f nwonl and aomewhal arbtlrary
DMaanna alWrmid* iu mpfiRaiitig di>-
onbn In tli« tfrrttofy lately in nbdlion,
and ia recooMtmi'ting the ebattcred fahrio*
of Stale govFrnmrul- Tb» eoaitltntloa of
any nation i> pradially what it baa b*-
romo by the pnctial tonstnution of
(boat In autborlly, aeiinieaced ia by the
pve^ila; and it ijaublhil polata bare been
oonred by tbat mntiraMian for parpoau
apfannlly baneHcial, and under circun-
Btanoeaaliioh bielfaie tha peopb tuappiwral
Of indJAnnatv then t* ray gnat probs*
bility Ibal tha ground tha* oconpM will
be jxraianently potaoaatd, and initaad of
bring *ft«rwanU ahandonod volantarily,
may sot even be oenttattd by tboae wb«
mi|ht hBT« dona eo wltb rigor and rifoM
nador oOwr dronaubuwes. How hr tbia
ahonld ba'ao wa do aol diiooBii tbat It 1*
aft in fad ia nn^DeelionaUa. C
224
CONSTITOTIOK Or THB DITITBD ffTATES, [BOOK HI.
vill together form a federal republia The deliberations iQ
common will offer no riolenoe to each member, though they
may i« wrtain rcsiiects put some constraint on the exerciae of it
in virtue of roluuturr coKagemcnts. The extent, modilicationa,
and objects of tltc fodcral authority aru more mattoni of discre-
tion.' So iotig aft the scjutnte organization of the m«mb«ra re-
mains, and, from the nature of the compact, must continue to
exist, both for local and domestic and for federal purposes, the .
Union is in fact, as well as in tlieory, an association of States, ,
or a confederacy.
§ ^12. It is also, to a certain extent, a social compact In
the act of association, in virtue of which a mnttitudo of men form
to^tlier a atJkte or nation, each individual is supposed to have
entered into engagements with all to procure the common vel-
fare; and all are supposed to have entered info cngagemontB with
each other to facilitate the means of supplying the necessities of
each individual, and to protect and defend him.' And tliis is
irhat is ordinarily meant by the original contract of society.
But a contract of this nature actuiiUy existfd in a risible form
between the citizens of each State in their several constitutions.
It might, therefore, be deemed somewhat extraordinary, that in
the i-stablishment of a federal republic it should have been
thought ueceiwary to extend its operation to the persons of indi-
viduals, as well as to tiie Slates competing the confodcnugr,
§ 81S. It may be proper to illustrate the distinction between
. federal comp«ct« and obli^tioiis and such as are social, by ono
or two examples.* A federal compact, alliance, or treaty is an
act of the state or body politic, and not of on individual. On
the eontrar}', a social compact is understood to mean the act of
individuals about to create ai>d establish a state or ttody politic
am(Mig tliemselvcB. If one nation binds itself by treaty to pay a
certain tribute to another, or if all the membere of the same con-
federacy oblige thprnimlves to famish their ouotas of a common
expense when reqaired, — in either of these cases the state or
body politic only, and not the individual, is answeralile for this
tribute or qunto. This is, therefore, a federal obligation. But
where by any cmnpact, cxpriiM or implied, a number of pertong
are bound to contribute tiieir proportions of tho common ex*
■ I Tnokcr'i Bkck. Oowni. App. nota D, p. 111.
' 1 Tndur't BUdc Cooimi. App. note O, f^ 141. * U. {^ 115.
pensen, or i'-
and where i
society it
person oi .
CB. m.] flH^P* ^K* coxsTiTunoN. 225
.<ii B.fr ",)l Intra m«cle by the common conaent,
iiuioe with th«B« engagcmeats Ihe
1 t> i^nntribution or to puninh the
;-....^ucut, I.. - " be understood to be more
in the nattirc> al a social Ui U obligation.'
§ 314- It ia an un^inul conj|i' i \Vi'i tover political relation
existed liotwuen tlie American v '.■,■• < <ini ^ct-dcnt to tho Revo-
iutioi), ag constituent parts of the i'< ti?<l< Kupire, ur as depen-
dencii.-8 upon it, that relation wa.-^ ruinplctcly dissoh-cd and
umiihilated from that period. From Uie moment of the Itevolu-
tiuii thor liecame Hcrerally independent and sovereign States,
■jMesewing all the rights, jurisdicti«yi8, and authority that otlier
'sovereign states, however constituted, or by whatever title d«-
uoniinated, possess; and bonnd by no ties but of their on'n crea-
tion, except such as all other civilized nations are equally bound
by, and which tt^cther constitute the customary law of nations.'
> ] Tntbr'* BUeV. Cdtnm. App. nets D, p. tiS.
* 1 Tack. Black. Coutin. App. nota D, p. ISO. TW* *l«n km rtry dlOtrent ftam
tboe whkk He Dua hM^ with to nach funw uid ptr^ieuity, ntged iu lib Appendix
t« hh Abridamont «f tbc Ltw, } 3, p. 10. Ac.
" In ordar eomcDy to Montatn tkU ninV, thb UnlctnK together, and ikia nbordi-
JjtMwn. vc uuct fia back m fur m J«nunry, 1774, wbtB Uie thirtMn SlstM axaUd
tftMMUy in the condition of tKirt>-(ir BritM akmiet, jrtt, iefiiela, 1A< fop^* of
[tiiFm Fitmicd origin*], wTmign pow
rDtot*) CoDgnai; lad (•pcdallj in J .
[povnn ll»t irill ba d«M>ribdi o'^r
•W* ttMt, on ttmixdioaary priin'i
aO* cf Ail fttftU, fim CTMtoliff
tlio pMple Tottd In tt nrjr rrlx
•ad daflMd by lb* Anlcloi (i '
iCMwUtulioii of ilu Unitfrl >
cd to do it U -.-i
^fr^oni, laotfrifia cb^-i.
lMlll«l«>I •IiiHbi tW '
OD'I two iliinU of t^i
ttlaUiAtd by tlir i'
h«<re bran. t>y t)jr
(a uilKinlliKliori 1
■Bpwma law ; *t
;Um ftnti n( % I
'to tha ponrtr"' l -.
[flatdjr Br
LMalllha 1^-'-'. ">
LaUMtion.'
Trfc, L— 16
ir institution, in ITTt, of iho Conii*
'1 VHiiiift in ii tbc great nationa)
iron renuDcd. Hie mall will
tC'-TMnant waa, by thr«M(n<fN
a iauilhtod; kud, bjr tb« aaou ai.-t%
, i..^li hsrs tTOr RBiuned in It, niolifitd
Md cnlarscd and amnsMl anew by the
-It tbe StaU gDrenincati anJ Stalo^ a«
.770, ercklad by tlw gnwnl goronunofil,
. oa nrdvtionBiy prioelplM, and In tbtir
ilia Sum goTcnmaata, m mtK, km been
mBKnc aivj in lubordinaticai to it,
)i(i l.'iiital Suie* wi* erdniwrf tmd
rrity. Tha SbiU goranunanta
i>'r, and apraaUy or ImpliMU^
I . Hbirli i> fipwaily rtcopnid bj aU to be
'.'<1>. ii. ia theiMtanof Aingi, miitrior ta
fowtt at a Sut^ a ]iart, ia tnliHoir
L -. ;L;.^. :: — ,.u;li of Iha tweiity-lBiir State* b e«m-
-lytrifn at Hiuna er FTance. of coona aa oortrvlgn
lit MTenignty i> abore Judicial oqgnuaorMv mtrit apeekl
226
cossrtTtmox op tub ckitbd ctatks. [eoor ni.
§ S15. It ia a written compact. Coiuidorcd as a federal com-
pact or alliDiice bctwecu the Htates, thsrc is notliinf; dw or sin-
gular in this circumstAQoo, n» all nationnl compacts since the
inrcution of letters have probably been reduced to that form.
But considered in the li^t of an original social compact, the
Anii>rican Revolution secniK to have given birth to this new
political phcnomrnon. In eror; State a nritten Constitution was
framed and adopted hy the people both in their indvidual and
Borereign capacity and character' (a)
% 816. It is a compact frcoly, voluntarily, and solemnly en-
tered into by the several States, and ratified by the people thereof
respectively, — freely, there being neither external nor internal
force or violence to influence or promote the mejisurc, the Fnitcd
Htatcs being at peace with all the world and in perfect tranquil-
lity in each State ; voluntarily, because the measure had its com-
mencement in sgwntancous acts of the State legislatures, prompted
by a souse of the ncci-ssity of some change in the existing con-
federation ; and soli-muly, ns having been discussed not only In
the general convention which proposed and framed it, but after-
wards in tlie lej^islalures of the several States, and finally in
the conventions of all the States, by whom ic waa adopted and
ratified.y
§ <117.Ut i« a compact by which the several States and the
people thereof respectively have bound themselves to each other
and to the federal government. The Constitution had its com-
mencement with the body politic of the several States; and. its
final adoption and ratification was by the sereral legiBlotorea re-
ferred to and completed by conventions especially called and
appointed for tliat purpose in each State. The acceptance of the
Constitution was not only an act of the hody politic of taeh State,
but of the people thereof respectively in their sovereign charmctcr
■ 1 thekw't Bkdt. OsoiMi. kpf. not* D, p. 1S& Tlin* It 4n iiuMnacy hm ;
OMOMtkat 4U hm Bgmi a ooiutitiitiaii natf ISIS, aaJ mUIkI quIII lint r«Hfd
uod«r W coknkl ctottr. Rbod* lateail ftWMd *nit adoplcJ a euiuUtuUua ia IS43;
* 1 Toektr'a Bkek. Canun. 1pp. note D, pp. IDS, lU.
(a) But mill mtll a^pttm llw ml-
«nk) eWt(« fitnat be eoDiideml u bar-
injl Ixm aocepttil fat aai u conttitiUing
a State nMUiUttlM. TUi wm tbo ri*v
taken b^ the Sapeiiot Cuurt of Bfaoil*
IiUsdIn 178S,>tiMlnUiacan(if'n«vMt
*. WeMliw, a )t^lattv« Ml wa* doelMvA
tmoonctitullaiml tecaiue in oonljel irfUi
the tojti chmttBt. 8m ako Lather tk
B«nlMi, 7 How. I.
CB. lU.]
KATCHe OP THB OOKSTITCTIOS.
227
and capacity. Tlic body politic was cumpotont to bind itiMilf,
M) f ttr SM the confttittition of the Htatc pcmiittod.' But not UaT'i
iiifl jiowtir to bind the people in ciuius iK-yund thvir const i tut Jonal)
authority, the n«84;ut of the |>coplc wiu iiidii»i)cu»nbly necessary .
to the validity of the compact, by whidi the rights of the people -
might be diminished, nr aubmitt«d to a new juried ictioD, or in
any manner affected. From hence, not only the body politic of -
the several States, but all citizenii thereof, may be considered as
parties to the compnct, and to hare bound thonj«elTea rccipro- ■
cally to each other fur the due obson-ance of it, and also to hare
bound thcmBclTea to the federal firorernme^ whose author!^
has been thereby created and established. *1 '
§ 318. Laatly, it is a compact by which'^e federal govom-
mvnt is bound to the several Statca and to every eitizen of the
United States. Although the federal government can in no
possible view be considered as a party to a compact made ante-
rior to its existence, and by which it was in fact created, yet,
as the creatnre of that compact, it must be botmd by it to its
creators, the several States in the Union and the citizens tlicreof.
(laving no existence Imt under the Constitution, nor any rights
but such OS that instmrnent confers, and those very rights being
in fnct duties, it can possess no legitimate power but such «s is
absolutely necessary for the (terfomiance of a duty prescril>ed and
enjoined by the Constitution." Its duties then become the exact
measure of its powers; and whenever it exerts a power for any
otlier purpose than the performance of a duty preacritied by the
Conslitiition, it tranagrcascs its proper limits and violates the
public tru»t Its duties being moreover imposed for the ^'^ncral
benefit and security of the several States in their politictil ehar-
actcr, 'and of the people both in their so^'creign and individual .
capacity, if these objects be not obtained, the government ducs-
not Bnii«~vr the cud of its creation. It is, therefore, bound to
the several States respectively, and to every citjien thereof, for .
the due execution of those duties; and the observance of this
obligation is enforced nndcr the solemn sanction of an oath from
those who administer the government.
§ 819. f^uch is a summary of the reasoning of the learned au-
thor, by which he has undertaken to vindicate his views of the
> 1 Tucktr'i Bittdc. Cnnm. Afip. noU D, p. 14B.
* ] Tuck*r'i Black. Camn. naU D, f. 170.
* lUd.
228
CONSTITCTIOS OP THE UNITED STATXS. [BOOK HI.
nature of the ConHtitutioo. (a) Tlut rearming has bwn quoted
At largo, and for. the moiit part in his uwu wuixlts nut trn'roly aa
his own, but as roprt-ounting, in a gvncrul ttt-uiiu, the opinions of
a large l>oi]j' of stutMrnen and jurisltt in different parto of the
Union, avowed and acted upon in former times, and reccntl)' re-
vived under ci rcumstaucoi which have given them increased im-
portance if not u porilouK iufluenoe.' (4)
> lUnr tnoM of tluM qilnkOR mOX be tomd in tha fmUle JebrtM 1b llift StaW
UgiiUtiu**, wid in OongnM it dilTannt pvr(i»la. lu tli« moJiiilnnt of Mr- Taylor, ia
tbe Vir^inU l(!|{u)»tim in I7>3, il wu mulnd "tbat thlt luMinbly doUi upUdUx
■nil pCTUnpUdly dcelan^ that It vism t]w pow«n ot the FtiUnI gornniBimt « i«-
•nbliig from ths cafn|HKt la wMek iA< £M(i« art partu*.' So* Daite'i Appmdix,
(n| When, in 1S<I, Um ptople of that Duin mu oojiieil rruiu tlitt ot the (Jnilad
■Mtian of tb* Mtmtiy in trhidi the doo- StatM^ but its rrunen wen fmitfaokr to
Iriiirn uf Mr. Tiirltir W uh*n ino*t totlf^'fttXa that ibc pcrwrn veMod in th« Con-
Hiii^uil'ti'il to withilniw tnia lb« Unien gn** mra dtltyaud, mi jpioaicd to tlikt
uiil valublisli > goTerikuunit of CctEhI- bodj'.
cntD SUtes, tbof nndcavarril bjs. thrir llow iar dw purpoce of thaar ramtioM
conatitiition to ptvdude, fatirvcr neh n Itimi tha Conxtilalioa of the Union «u
conttniellan gf lb* initnniaiil m bad aocoai|4itb«d luaj api>«ar from tb« aUta-
nieiii, doiibtltM Miuevbat cnggtratol,
ol a promini'iil M*or, who dc«ktsa that
" in Icaa tban a tWraMontb after tbi*
aaraa boaatad »tatw-ri^ta ConMttullan
»at ]iul in eppralioii, fta •nrj fminct*
Botorioiialjv anil in apfte of all nonon*
•tnsea, •ncModed tn MowlidatinK all
fortrnnianial |ioanr In iIm f»ntnl atpnt^
at Ric)men>l, anil, U]>an the Oala pica «(
■KiUtoy nttaiUf, alianH-leMljr trod oniUr
4^toM(. promWi M« fctt^a/ trd/an, and loot dl ibo MMrrsdr^UoT tba Sutca
)iii'val1i>>I tvginliiig lliu CuDriiliitiim of
thu VnilxA States The pRamblea of the
tiro inttmmeiiti |ilaiwd ude \tj iMa nil)
tbow vury clliUnol; tb* dUTanaiM iB tba
«nda aoneht. ■
PnamUt to Of OMAMUm qT (A«
nnitrf^Sato. •■ WV^lift ptofia o( tha
Oiitat Statd^ in oidar to form a mpnpiT'
fid Omlniy rslaUkh jntfko, iumk do>
uaalte InuiiiilIUUr. prvHit/ar Ou
■tenia tba Meaainga of Uberty to owaelvaa
and our peMarity, do ocdata and aataUiali
tUt Conatitutlon for tba raited Sutca tt
Anorioa."
AaamMi lo A* CtauMMtM qTOe Cn-
fiitrau SMf*. •• W«, tha paofile «f tba
QniMtnU* Slates, and eatk SlaU aeliaf
tt a* tBttrrigm and LMfrpndnt dianMUr,
in onlcr lo forai a pmnaneDt FtdenU jpir-
eronimt, cataUldi jaitiok and aaoara iba
bltaiinip of liberty to onraaima and o«r
{Mlatity, Infotliiii tba tariTr and gnliUaca
of AUnigbtr G<^, do ontaia and aaUbUib
Ibia CMadtwtioa fbc tba Confnlnala
StatM of Atnacha.^
Tha OcaManta CbnUimUoa h tha
and tba paofA*, and origanicad «n im-
•pmdUa milltaiy daapoUiM In tba tvy
beaMi cf tba Ancient Dnwinlon, aa bmih
■ad grinding in it* cbaiactoraa ^a erar
bofttoforearlirtadlnanjafi: (,(lh><roHd."
Tha War of Iba ReUllion, )>y U. & Foote,
p. 19. The MuaaunB of which Hr. Foota
coniplaintd wfic diwppnnj of by. tha
Tica-Ptatlilral of iba Conffdefacj, and
*«» the lubjaet if pMlaata la aom* «f tha
SWai^ npaelallT In Oawsia; bol in a
tifc^nd-daatb alraggle Mgorcnunvnt i*
Bkaly (« inqnin vny eanftdly into papa
tbnitaliona opon lie powaia. C.
(») 8m alao Ufa of WaUtat, by i^tsr-
til, II. Bb. Ifl and la^
CH. m.]
NATUHB OF THB COSSTITUIIOS.
229
$ 320. It ia wbfilly beBido our present purpose to engage in a
critical commeatary upon the difFert^nt parts of this exposition.
It will he sulHcient, for all the practical objecta we hare in Tier,
to 8UK$^t tho diflicultira of maintaining ila leading positions,
toex]Miiiid the objcctiona wlich huvo bwn urged against them,
and to bring into notic-o those upiuions, which rest on a very
different basis of principles.
§ 321. Tliv obvious dfluctions which ma}' be, and indeed have
been, drawn frooi considering the Constitution us a compact be-
tween the ^t«t«s, are, that it operates as a mere trejity or conven-
tion ti«tween them, and has an obli^tori- force upon each 8tat«
DO longer than suits its pleasure, or its consent continncs; that
each State has a right to judge for itself in relation to-the
nature, extent, and ol)ligations of the instniment, witlioiit being
at all bound by the interpretation of the ffideral government, or
by that of any other State ; and that each retains the power to
f. IT. Tha oc^giad nwlaikm had Ui« nrd "alone" afUc "Stttia," «1ikfa mu
r itrtck Mt Ufa) tha dtolJan of tha origiiial movar, h luvliig botn ancKed in tb* de-
bu* thai Uia pavl* w<n panlaa alaa, aad tiy mim of tliB wftkan that llw p«of4a
' irtn «Kcl«itT«lj pwtiML
Tb* Kentucky mnlallMa cf nV7 (irlikh «ai« dnilcd bj Mr> JcSmmu) dcdan
** tluil to tkte map«ct (tbt radanl CcnutituUon] cub Suu acceded u ■ State, and ia
M li>t«fn*I futy." North Aiu«rica> Rrrlme, Oplubtr, 1830^ pp. SOI. M. la Uia
riaoIatJona of the unato of South CaioUiut. in Kov<?ml«r, 1S17. it wu dcclaredi
"tiMt tlie CoMtitatioa of the I'mCnl SUt«a ia a compact between the people of the
diftranl Stataa vith laeh other, la upanito and indcjiriidiaiC aovereigntiu." Id No-
. TunlMr, im, tba Kaatodcj ItittoUun fMti a naolotlon, Jiwlaiinit llml llie Fuieral
Stataa had a tight Ut Jwdge cf any InftacliDa of the Conslltulion, and that » imlUI'ica.
i tioii by thoae aoTMeigntiea of ait nnaathofued Mia done under color of tlut intitninient
h tho ll|hlflU riantdy. Nocth Anierwaa Beviev, ld> &03. Mr. Mndiiuii, iu tlie Vir-
ginia Beport of IMO^ ntMrtU tti« riglit of the Stataa, a* parliu, to decide npoM the
mnoouatittitkiaalily of aay maaaiue. Ibfort, p|i. S, 7, S. 9. The Virirlnia ItgiablaT*,
fai ISS). pawaJ a nwUHoa, dadaiing lliat "the OmatiUiliuD of tbr UnUad Sutw
t>4iiig a MMBtl** coaipact fa*tirt«m aaviiiajga Stalea. in oonatruing vhidi no oonuBMi
atUte* b ItBOSB, n^h Slate bat the rigbl 10 <ott*tnw the compaet for HactL" 3 Aaa.
An. Bt«.i Uxal lliitury, 131. Ur. Vtoe-FrtalJent Calhoon'a letter to Gov. Itam-
lUoti of Aa^nat SS, 1832, «ontaiua a vfty tlaboial* opotitioa «f thb amoag otW
doeUtnca.
Mr. Dan«, in hia Appandji (f S, p- lt)> >*y>, that far forty yean one great pat^
hu tvnirnl tin Conatltullon a* a Cnl>ratlTe cooipMit aaong the States and ih* othtf
i;mt |>arty, not aa aoth a camrai-t, tail. Id IIm main, ualioaal and popular. Tb*
gran debate in the BoMte of the I/'aitol Slaua, «■ Mr. Faot'a tnnlutian. tii tbe
winttr ef tSSO, deaovH to bo OMd for ita aMe expoMtion of tb* doctrin« aalnlainad
cm aatk iililc tli. Dane utha* tnqMMit icfncseea to it In Ua Appandix. 4 ElUot'a
Debate*, StS to S30.
S80
coKSHTtmoK of tob cniixd stateb. [mob in.
witlidraw from th« confederacy ftud to dissoI^'e the connection,
when Bucli ahull Ihi Um choice; and muy suitpeud the upcruiiuns
of the fcileral govcrmncnt, awl nullify it« acta withio it« own ter-
ritorial limibi, whoncrur, in its own opinion, the csig«iicy of th«
cane may nxjuire.' These conclusioDB may notnlwayii Ije avowed;
but they flow nattirally from the doctrines which wo have under
conBidcratioD.'(<i) They go to the extent of reducing the gov-
ernment to a mere confederacy during pleasure ; and of thas pre-
senting the extraordinary spectacle of a nation existing only at
the will of each of its constituent parts.
> VitiHaii, tn Uw naalntion* of b«r lagtoktuM on Ihi tatUt, in gAmitj, 1S39, io-
eUml, " tint Ibtn ia do commoii irliiUr lo eonMnis tlw OvmUmiIou ; Ui»g a /td-
4ralim crnipief Idteceit BOTRcigii Statoh oaoli Suie list a rigbt lo OoaXiU iba con- '
pMt Cor itadf." B Dmu'i Abridg. eh. IST, ut. M, S >*• ^ M»' 8m alu No*Ui
Amutcan Roiiow, Oetatm, 1830, pp. tSS to S38. Tha laolatMa* ot Ktatucky of
1793 ooDtaln • llko docUntkn, Ihif'to thb oavi|»ct [Uw CoortiuAioa] Mch 8ut«
MonUil u K Slate, >u<l U an ioWgnU {Mriyi tlxt Ilia genmnMnt cnattd h; M» com-
pact wu not roaiU Ute exolarirc oi final jiidgt ot the pouvit dakipMl to itatU', tc ;
but that, u In all othartaMaof oomjiaet amoag partiM haviagMocouunou jnil^vadi
peftjr ItM an oiiial rlKht to jiailfgt lor (ticir, m «mM ^ infraetien* om^ tin meit ami ,
nitiuuTt$tfratnM." North AoMrkan R«rt«w, OcMUr, IStt^ f. HI. Tha KMAttckr'i
raeJoUont of 17M fp» fuilW. and aant " that tl» acrontl 9HIM »fco bmcd that '
lastmnent [tha OoartUotioal being aomeign «4>d imletiondtnt, han tha iiBq»eaUDn» '
Ma right to jadg* of ita inbacHos; aad tkat a ttuIUflcalion b; thcaa aovimgntica of
all aliauthoiticd acta doii* nadar color of that iHtrumsnt U the rtghtftil nrntij,"
Moilh Anwrican RuvUw, ]i. S03i 1 ElllM't DtkmtBa, 815, SS3. In Mi. Miduon'a
B«port in tli« Virginia l«gialatuiv, in Jannarj, 1800, it ia alao aOnngd that At Slataa
ara pardea to dk* Ocautftntian; bat hf SKoCm ba hatv nraM (aa tha ootilaxt aspiaina)
tha prnpla of tha Statat. Tbe tcpoK in^Ha tha lb* Sutn ar« in the hut NM(t tbt
nltiniatoJui^Mof lUtnftactlOMof tbtOMMtitatioK. pp. C T, S, ».
* I Oo not in«>n to antrt thai aU thoM who haU tiuae doctriBW hare idoploil tha
conclniion* drawn (ram tbcB. Tbm ata Mnintnt aiotptlona ; and Mnong thorn tha
Ivamail comnMntator on Blackatamn** CoouncMlarira *r«ma pioparir anaibcnd. St*
1 Tnokar'* Black. App. 17<>, 171. | S. iba tha dabalat tn tha Saaala on Mr. Fool's .
Raaotnlion in 1830, sod )lr. Daiia'a ippandiz, and hia Abttdgmnil a»d Dlgivt, Vol.
IX. «1>. lit, art. M. f S IS to 33, p. 588, 1 Mf. ; North AnMriom BeriBv fat Oolobar.
Ittt^ontbeDalMtaontbaPttbUeLMdikpp. 481 to 488, 488 to a!8 ; 1 EWot*a Do.
tBt«,31Ste»D: MadiaiM'a VlfKinia lUpcfft, Jaa. 1800, pp. 8, 7. S. » ; 4 JaCmoa'a
OanmfomSaieu, Hi ; Tica-Pnddwt Calhonn'i leltar to Gov. nantOlon, Angot V,
(a) 8m Hr. Hxlisatt'a Mplaaatian of
tha Viigiwa Beaolutioua, Wridngiof Had-
laon, I?. >S ; KotUi AmcricaM Beriav,
(Mot-ar, IS3« ; fUMblTa JtfoMon, II.
451. 9«alMi kU Kadhon'l<4aboral* pa-
per on NnlUGtation, la hi) Wrllinga, IV.
m> dmpar* aitatheiightof tlieStatiaa
to jvdgc M'to iftbaetloai of tb* CaiutlCa-
llon, Report of Iha Rartfonl Voiinotioa
of 1811. 1> I>w%ht'a Kitforr Oumnt,
^ Sn ; Kil^a BtglMar, VoL VII. p. 808.
CH. Ul.j
NATCBE or THB CXJXSnTDTION.
■-r
SSI
§ 322. If this bo U)o truo iDtcrpn-tation of the instrmneDt, it
has wltglly fuiled to cxprcjui tbu intentions of its framers, and
brintn buok, or at least may briog Iwck, upon us all the otIIs of
tJiu old confederation, from which we were DupiKutud to Imvo bad
a safe deliverance. For the power to operate upon inilividuaU,
instead of q)>oi-nting merely on States, ia of little consoguvncc,
tbougb yielded by tlie Con-ititution, if that power is to depend
for its exercise upon the continual consent of all the memlwra
upon every enierjrency. We have already seen that the framers
of the instrument contemplated no such depcndenoc. Kven onder
the confederation it wa« deemed a gross heresy to maintain that
a party to a compact has a right to revoke tliat compact; and the
possibililr of a questi<Mi of thia nature was deemed to prove the
nocesaity of laying the foundations of our national government
deeper than in tlic more aonction of delegated authority.' ''A
compact between independent sovereigns, founded on acts of
legislative authority, can pretend to no higher validity than a
le^ie or treaty between the parties. It is an established doctrine
on the subject of treaties, that all the articles are mutually con-
ditionii of eoeh other; that a breach of any one article la a breach
of the whole treaty; and that a breach committed by either of
the parties absolves the others, and autboriices them, if they
please, to pronounw the cumpuc-t violated and void."' (a) Con-
sequences like these, which place the dissolution of the govern*
ment in the hands of a single State, and enable it at will to
< Tbn P*dar*lbt, T>o. tt ; IiL Ko. 49 : w* kIm Hr. VtlUnatt't opiiiioa ia tha eon.
rtatiiMW 4 EllIM'a [Mbim, 74, 76 ; «iul ¥*(«'■ HuibU*.
> 71w Fidinlbl. So. iS. Hr. Hwluo* U the Viigiiib B«poR ot hamrf. 18<A
•Merta [pp. 8, T) tlutt " Uia HUM being )aKUi t4 the wrtiftfawil coiu]iKt, ibiI is
thrir •ovcraifp Mpadty, it lolkiBi or ocwuit; tlint thnra caa b« no bibanal •bow tfcdr
■aUiaht; to dedd^ Id tka Um tmoit, whctbvT xiie cotniNet in»(le bj tbtla ba viokladt
»Md wiHMqmatly. thai, u tlw putki to it, thay miul thauMlvM dcciik in th* kU !«•
hH tmA qnatiwM u Mtj b* «f talBcUDi maKnltuila to Mqvin tihnlr Istafpodtloa."
Id. pp. 8, 9.
, ('■) In Uu! Itcport of tJb« Baftford Om-
TemioD oT ISU, U wu iledued that " in
CMM of ilellbfnu, d»ag«Tow. ud \»if
bit infr*(«ku of Iha CmuUtntkm aflWt-
lag ibi tovMeignt; of a Slala and liUrthn
of the peopla. il b not only tlie riglit bot
th« daty of Mdi • Slate to interpoae fta
■atWit; far UibIt ptDtaetlon, la th* mair-
an bMt ealcnbtad to Mton that omL
Whan <niwg«atha oc«nr wkjcib an (Mwt
Uyond tba natk «f tha j«dkU trihnaala,
ot tiM ]iniiag to adinit of tha dalajr inci*
dcel to iMr ronai, Slat** uUcA JUm Md
coamum umpirt MnM ba their ovn judgv
andMKTUtr thnroBndMlaiaiui.'' Dvigbt,
Hbt HutTord Oonvtadoa, Wl ; Kiln**
it^utw, voL vn. ^ SOS.
COXBTtTtTtOM or TUB DKrTED RTATBS. [SOOK IljJ
defeat or i»wp«n<l tlie o|>«ration of the laws of tbe Union, arc too
Mriotu Dot to require an to Borutinize «-ith the otjnost care and
caution tlio pnticiplen from whicli they flow and by which they
aro alli>m|itcit to Ih; juHtilit-cl.
{ 82S. Thfl word "compact," like many other important words
in OTir langiiHftt!, ia atuccptiblu uf different shades of meauiiig
and may ho UHod in differont scuHoa. It is Bometimes tued
merely to exprt-sa a dcUbcnito and vuluntary assent to any act or
thioR. ThiiH, it hnx lM>en said by Dr. South, that 'Mn the be-
giiuiinj^ of ajK-ci'h, thei-o was an implicit compact founded upon
common oonsont> tliat such words, voices, or gcatun.>« should be
Bi^s, when-by thoy would expcoss their thoughrs;"' where, it
is obvious, tliat nothing more is meant than a wutiinl and settled
appointment in the use of language. It is also used to exprcM
any agreement or contract between pnrties, by which tlipy arc
botmd and incur legal obligations.* Thus we say thrft one person
has entered into n compact with another, meaning tliat the oon-
tmctiiij; parties have entered into some agreement which is valid
in point of law, and includes mutual rights and obligations be-
tween them. And it is also usod, in an emphatic sense, to do-
note those agroeiuents and stipulations which are entered into
between nations, Bueh as public treaties, conventions, confedera-
cies, and other solemn acts of national authority,' When we
speak of a compact in a legal sense, we naturally includo in it
lhii notion of diiilinct cunlracting parties, havini; mutnal rlKlits
and remedies to enforce the olpUgutions arisinii thervfrom. Wo
suppose that »aob party has an equal and independent capacity
to enter into tho contract, and has an ei|uiil rijHit to judjm of its
tenns, to enforce its obligations, and to imiitit u|Hjn rcdrms for
ftny violation of them.* This, in a general sense, is true under
> Clml IB JotiMM'i DictiaaHT, nrb. Otmfttl. Sea BtiDccc. Elm. Jnl^ Satar.
■ lN»«liirr ilUiiiyil'ht* UK nil a oeninct ani •■ ifUMuiL Aa
m^u, tt llw fwwal «f Mv or man (Mnoas ta htm looa tagiflMHat. «r (a i
■MUfy ■■ MugiwiBt afawdr Bade. " Dactw* nl ptonna la IdMi i
MW." had. Uk 1. 1 1. d. PMtk. Aa^wiwMaUff wUA two i^tjw iwf— •
Cb
fliUy ffiMiM mhI «>fl«t% ot Ma of tbMi ringtr pn«ii« tad m^^c* t* ik* *Am,tB
|iw ■••• (MtiraW Mmg, or M An or ahMafafrHa ■ pMtJeaW ad. » » wtiMt ;
tyvUckbaMMMMeku ^.iBMa aa |t*« ■ {MRj IW ri(fct UriIIt teHwain*
MiratfacMaM. l>MUif,<Mic.lMtl.cLl.i1;«t.l,|l. SmlWmk.*
• V.tMl.a&dLl& {ISS: I Ktdt.Omm.ti.
* t lb*. Oamm, ttt.
CB. nt.]
NATOBB OP TBB CONSTlTCnON.
238
our syRtema of municipal law, though practicallj that law stups
short uf maintaining it in all tlie vuriety of forms to which
modern refinement has pushod the doctrine of implied contracts.
§ 324. A compact may, titcn, be said in its most gvnernl senso
to import an agreement, — according to Lord Onke's definition,
aggrtgatio mtntium, aii aggregation or consent of minds; in its
strict4.'r sense ta import a contract between parties, which creates
obligatioiui and rights cajiahle of being enforced and contem-
plated aa Buch by the parties in their diatinct and inde|M;ndcnt
cUuracters. This is erpially true of them, whether the contract
be between individuals or between nations. The remedies are,
or may be, different; but the right to enforce, as accessory to
the ublipttioti, is equally retained in each case. It forms tbo
very stibotnitum of tht- enpapcment.
§ 326. The doctrine maintained by many eminent writera
upon public law in modern times is, that civil society has its
foundation in a voluntary consent or submission^' and, there-
fore, it is often said to depend opon a social compact of the peo-
ple composing the nation. And this, indeed, does nut. In
suhstanc^, differ from tlie definition of it by Cicoro, Multitudv^
jwit eonaenm tt utilUatU eommxtnione toeitOa ; that is (as Bur- \
lamaqui gi^-cs it), • multitude of people uuitcd -together by a
common interest, and by common laws, to which they submit
with one accord.^ (a)
■ WoodMon'i EattMOti of Jurbi-niittBra. 11, SS ; t Wllaon'* Uw LccL 301 *90S [
VituI, 8. 1. ch. 1, 1 1. 3 ; ? RurlMN()ut, part 1, el>. 2, S, 4 1 1 Rliuk. Canim. 47, U ;
n«lMtc. L.S,c)i. 1, Sf 13 tolSi (STunbuU. lIcUin:(^^>-stia>o( Unlvrrail L««, D.
S.ol>. 1, HBtolS:) 10. ch. II.HI«*U>I1S.
■ Barlmwini. (lut l'. ch. t, | » ; n*liiixc. EUm. Juris Katar. L. X <^ *> 1 107-
lb. Lncfcii u sac ot Urn tooit amlixnl aothon wb» h4r« Irrated on tbb ra1((Mt. Ila
(iMDdi >I1 dtil Kamiunrnt Upon MiixntL " Vb«," Myi ht, " unj nnmlwr of mm
hmr* to eonwntad to mk* • CMnmieitf or ^vtmrnnmi, tbcf mn ibtrebf |nM«l()y
iiiOM)>iiimtoil, umI tniko dm txxlf politic, witrtia Uu m^jorU^ iart a rigU toad, »iut
tantude Hit tat." Locke o« Coninunnit. B. 1, eh- 8, } H. And b* coniddan thb
oouMUt to be booiul bjr tbe will of lb* nujnrilf, u tkr iaHtftamMa rHalt of Iwcutnlng
a CDMniDnl^ ; " tUr," Mjrt ht^ ~ ihla nHfliul Mni|M«t, wiMivbjr li«^ witk otbtn^ Ift-
CorponiW* tnto uno mviply, oonld ugnirj nutkiiig, auJ b« bo ooiii|W!t il all" tiOtk«
OM OoTamnient, B. 3. H BA,^. 83.?9: Id.)} 110, ISO. Dr. I'aley bu muni nans
mj tanUAt objtctiaiw agaitut tUt dostriiM, both u natter «f tluoir and of fad, oitk
wlikb, battrtit, k la Mftrpiwuy fcm M Intoivwddl*. TW lUwujaiofi of thrm w««ld
mon praprrij bdaog to IwtuiM upMi natanl imiI |ulilkal law. Fabjr on Uonl anil
(4) S«( Jlainc, Andtnt I^w, cb. 9 ; LwtiuM oa the SmU C«m|iact, at PiwUmic*.
br Jobn QdIbct .\iluiia, 1842.
oownrcTTtoN of the dnitbd states. [book m.
§ 326. Mr. Justice Bluckstonc has very justly observed tbftt
the tltcury of no original contract upon the first formation of
society is a visionary notioiL " Hut tliout^li society had not its
format beginning from Aiiy convention of individuals actuated by
tlieir wants and fears, yet it is the sense of their weakness and
imperfection that keeps mankind together, that demonstrates the
necessity of this union, and that, therefore, is the solid and
natural foundation as well as the rement of civil society. And
this is what we mean by the original contract of society ; which,
though perhaps in no instance it has over l)ccn formally ex-
pressed at the lirst inatitution of a State, yet, in nature and rea-
son, must always be understood and implied in the very act of
PoUtiul Plii]oao)jli;, B. fi, oil. S. Hr. Bark* haM, in one od hii meal ■plcndid p(if«nii-
ftnc!*, tnado Mmo {nxrfauiid tdloctlotu mi thU aiit|)cct, Ibo eonoliikiaii ol which MOMlo
b«, that it lociMy Id to bs dMnud a oonLnct, U b cne of ftiTriini obligufan, mi not
lubl« U> l« rilnolml ■! the will ot thua* who hiVB entered iiiV) it. T1» futmgt !■ U
follow*: "Sociolyii indwd a contmrl. Subonlinnto cantrKta for olgccU «f am
oecuionil liitan«l amy li« dUwIvnl al jilvMnr*. Rnt tha Staia ou^it uot to Iw «od>
■Uvivd n nutliiug btm Uiiui • piitu«nhip tgnvrntul iu ■ tn>l« of p'I'p*' attd toth»,
nlio), OT lobacoo, or RMBe other inch low coucarn, to Im Ulcn uytor a liltit toapinty
luUraaC, and to be dbMlvcd bj tho tuKj of Ihc partjra. ll !■ to be lookod oa «itli
Othar (ararmM ; bacauM U la no* a jiarlnanlilp In ttiingi, xubMrrlMil oiily to tba ipram
•nhnal exial«n«i oT • tvuipomy and |irrl*b«bla naiurt. It b a |«niMnliip in all
MJNin, a partMnhip in all art, a partncnhip i« avvry vbtuo *ii4 in all jMifrcticti. M
tiM citda of (Dch a pinnenhip euuivl ba obtaisfl in lauijr gvnerationi^ it bewti a
patlntnhip not onlj between tlioM who me livbg, bat bntwertt thoM who an UTing,
itiflMulia aro iimA, aiii] thaw who an to ba bom. Ra«li contract et taA partlcnlar j
Statu ii)<ut aclaiiM la thn gnat primaTsI oantnetatatarnal Mclaty, Unking tba lovtr
with the liigba niluTpa, ooncvotiug Uie viiililv and InTiaiUe woiU aooonling lo a AmiI
tonpact, lanctiontd by the iiiTioUhlo oath which bald* all pbyikal and all moral
naluKs, each in thdr appoiatol iiL>«. Tliui Uw u not labjoct to tbo will uf tboM
who, by an obU/^ttoti alior« thriD, and tnltnllaly lUjiorlor, an bound to nibmll tliair
Will to that law. The tniuikip«l voqicnllnn* of that unlrtml kingdom ar* no* nor-
ally at liberty at thMt plwuiv, and on tliairlpconlallant of a contingent inijirovf^at,
whoUf to tpjimtc and trac ontndcr tiM baada of tktir mbwdiiuita coamiuily, and lo
ditaolrcit into an uiuocial, QD<^iviI, uacMis«ct«l<h«a«af oleaMntary priod[dM. It ii
llie fint anj tnprpnio D«c«mitr oulf, — a aiciaaty that lanot ehvac^ bMtbooai^— a
a*ot«ily paiuMWit to delibmtion, that admita no diacuaaion. and d«Baad« no OTi.
it*t^ wUcb al«<n can Jartifr a reaart to tnarchy. TU* nvoeaii^ i* no nnpUm to
tii« rale ; beoanio Uui noeonty itadf ii a put, too, of that ineml lod {ilijnMl db]io*
ridoBofthinp towhid man moat btobtdUnt bf oonwnt or rone. But tfthatwhkli
ia only mitnnijHlon to neciadty ahould b* mad* the otjtwt of cjiolo*, thii U« ti twckfO,
UAtaia I* dliob«y«), and tbf nbtniom an o«lUw<d. out forth, and txiled haul thb
wotU ct reaaen, itt ordw, uul pnte, and Titln«, and Tniitful {xailenufv Into the
antafonbt world of madneea, diKotd, ric^ conhiaian, aaJ nuBTailtng ■arrow." lUllec*
Uona ca the B«v«lntian in Fiacce. ■
CB. III.]
NATCEB OP THE CONsnTDTION.
2S5
asaociKtilij; t«f^hcr; iiamuly, thnt the wholo sliuiild protect all
its parts, and that ever}- [Mirt should pay obedicnm- to tho n-ill of
the u-liulc ; or, in other words, that th« ooitiiuu&ity should gnard
the riglits of each individual nipmher; and thnt in return [or this
protection each individual nhould 8utimit to the laws of the com-
munity. " ' {it) It is in thia acnae that the preamble of the Cod<
dtitution of MaaBaehuiictta aasfirta that " the hody politic is formed
hy a voluntary aasociation of individuals; that it in a social com-
jnct^ by which the whole pcc^le coveaanta with each citizen, and
each citizen with Ihu whoU- [Mjofdo, that all shall be governed by
certain laws for the common ).;uod ; " and that in the ftamo pre-
amble tlic people ackuowledRC with Rratcfu! hearts, that Provi-
dcnee tiud afforded them an opportunity ''of entering into an
original, explicit, and solemn compact with each other, and of
forming a new constitution of civil irovemmeDt for thenuelre* and
thrir piutterity." It is in this sense, too, that Mr. Chief Justice
Jay is to be understood when lie asserts* that "every Stiite eon-
Btitution )8 a comtnct made by and between the citiicus of a State
to govern themselves in a certain manner; and the Constitution
erf the fnited .State* is, likewi.'te, a compact made by the people
of the United 8tatc«, to govern theiiiselvi'S as to general objects
in a certain manner." He had immediately before stated, with
reference to the preamble of the Conatitution, " Here we see the
people acting aa sorereigna of the whole country, and in the lan-
guage of sovereignty, establishing a cooatitution, by which it was
their Kill that the State govornnienta ahould he bound, and to
which the 8tate constitutions ahould be made to conform."*
> t Black. Comni. 47. Sm abo I Hum*'* Emkfn, KtMj I!. Mr. IlamA eaaiAAen
thai the nMieo of gorprnaatat bdiig uaitMMlIjr fooniUil ia ariglnal oeotnd, to vi»>
ioaaij, unkw in the mw at ita Iftiug fbnttdal a|aa tha couatal of IImw who Gnt
MiatlaH tafrthof and wty^t Uwnwdvw to autbcdty. He bM diociUMtl Um aatjcct
at Wf* la aa >labana* auay. E«ay 11, p. 491.
* ( l>toh«fan r. Sute ofOsoigU, S Dall. It. Il» ; mo >l*o 1 WIImu'i Uir I.wt. 305.
* in th« ontlnaiKn of Ounj^nw «f I7ST, for tha govrninwiil of Iha Uniloty of tha
IfiJtHi Statai nonhaMt of rirtc Ohio^ in whiob ih* wttlcnunt of tha XeniVarf aail tha
(ateblithmoit cf MVanl Stalaa thtnia w*n 0MUon4ibt«d, it «•• deebuad that ocnaiB
■rtklM thoatn wnaitntad '' thall ha oMuUttad aa orMete i^^itmpM bttwaui the oi%l-
Dal Statw and Iho li«0|Jo and Sultv la tha «ild Itnitatf, and forarar ramala Wiall«r»-
U(k aalnn hj coounon «a«M«it." Hm la an aspfM* raumoKtian of pattica^ na* «t i
Mhon wtn not thin i» oxittaaci^ and the actirta* of «ani]»ct altaclxd aa «ii«h only,
vhaa tlu; WON bma|[h( tnbo life. Awl than. toBToUalldaubt mIo thnr oUigaloijr
(a) 8«« MahM. AndeDt Iah, «h. 9.
S36
COXSTlttmON OP THB OXIIEO STATES. [BOOK Ul.
§ 8S7. But although in n general sense, und thoorotically
spL-akiiig, the formation of civil societies tuid atuteti ma.y thus
1m: tuiid to l>c founded in a social compsct or contract, that is, in
the Bulemn, express, or implied consent of the individuals com-
posiiig thcin, j'ct the doctrine itself requires many liinitntiun^
and quaiificntions when applied to the actual condition of na-
tions, even of those which are most free in their organization.'
Every state, however organized, embraces many persons in it
who have never aasented to its form of goremment, and many
■who are deemed incu|)able of such uasent, and yet who are held
Imund by its fundamental institutions und tans. Infants, minora,
married women, persons insane, and many others, are deemed
subjects of a country, and bound by its laws, although they have
norer assented thereto, and may by those very laws Ir- disabled
from such un act Even our most solemn instruments of govom-
ment. framed imd adopted as the constitutions uf our .Stale gov-
cnuueuts, arv not only not founded upon the assent of all the
people within the territorial jurisdiction, but that assent is ex-
pressly excluded by the very mnnner in which the ratilicatiou is
required to be made. That ratification is restricted to Ihusc who
are qualified voters; and who are or shall be qualified voters is
decided by the majority in the convention or other body which
submits tlie constitution to the people. All of the American
constitutions have been formed in this mnnner. The assent of
minors, of women, and of nnqualtlied voters has never been
asked or allowed; yet these embrace a majority of the whole
population in every organixed aociety, and are governed by its
esisting inatitutiona. Nay, more; a majority only of the quali-
fied voters is deemed sufScient to change the fundamental inati-
tutions of the State, upon the general principle that tho majority
has at all times a right to govern the minority, and to bind the
latter to'obwliencc to the will of the former. And if more than
a plurality is in any case required to amend or ehunge the actual
constitution of the society, it is a matter of ]>oliticai choice with
the majority for the time being, and not of right on the part of
the minority.
§ 3281. It is a matter of fact, therefore, in the history of our
httB. ihtjrtnto be otuOunU* txcvpt bj taminim eanmU. Ona fuif c««ld nut
ebuifi vt nbaolTC lUiU tntm lb* oUi^lion ta «bt7 Ibvm.
> Sm Borice** AppMl bon Uie Kv* to Uw (Hit Vhlg*.
CH. m.J
ItATtTRB OP THE CONSTTTDTtOK.
287
own forms of government, Ui«t th«,v have been formed without
the consent, express or implied, of the whole people; and that,
although firmly ratablJshed, thej* owe their existciioe and author-
ity to the Rimpie will of the majority of tlie qualified voters.
There is not probably a single State in the Union whose oonsti-
tation hag not been adopted against the opiiiiona and winhea of a
larf^ minortty, even of the ijualilicd voters; and it is notorious
that acme of tliom have been adopted by a small majority oi
votoa. How, then, can we assert with trutii, tJiat even in oor
free const itutiun the t^vommont is founded, in fact, on tlie assent
of the whole people, when many uf tJicm have not been pennitted
to expresa any ofitnion, and many have expressed a decided dis-
sent ? In what manner arc we to pru\-a that every citizen irf the
State ha« contracted with all the otlivr citizens that such con»ti-
tutinn sliall be a binding cumpAct between them, with niutunl
obligationa to obaen'e and keep it, against such po«Itive dissent?
If it tie aaid that by entering into the society an oaftent is necessa-
rily implied to submit to tlie majority, how is it proved that a
majority of all the people of all ag>*3 and sexes were ever aaked
to assent, or did aasont, to such a propusition f And aa to )>cr-
sous subsequently bom, and subjected by birih to such society^
whore i» the record of such assent in point of law or fact ! '
§ 32i). In respect to ttie American Revolution itself, it is
notorious tliat it was brotiglit about against tlie wishes and resis-
tance of a formidable minority of the people, and that the Dec-
laration of Independence never had the univental a(!«ent of the
inlial)itanta of the country. So that this great and glorious
change in the organization of our g«»vermncnt owes its whole
aathority to the efforts of a triumphant majority. And the dis-
sent on tlie part of tbe minority was deemed in many cases ft'
crime, carrying along with it the penalty of confiscation, forfeit-
ure, and personal and even capital punishment; and in ita mild-
est form was deemcfl an unwarrantable outrage upon the public
riglits, and a total dixregurd uf the duties of patriotism.
§ 830. The truth is, tliut the majority of every organized soci-
ety hare always claimed and exercised the right to govern the
whole of that society, in the manner [>ointed out by the fnnda-
mental laws which from time to time have existed in such soct-
< Sot 1 Hub*'* tu*yK tamj VL
238
COMtrnTCTION OF THE DNirCD STATES. [BOOK m.
\
ety.^ Every revolution, at least when not produced by poei^ve
force, has been founiled upon the authority of auch majorify.
And thfl riglit rciiulta from the very necejisitit's of our nature ; (or
utiirenial comient can never bo practically re*iuircd or obtained.
The minority arc iMund, whether they have asxented or not; lor
thu plain reason that opposite wills in thu same society, on the
8Hme subjects, camiot preruil at the Kume time; and, w society
is instituted for the Rcncral^afcty uud huppiness, in a conflict
of opinion the majority mu&r'have a' right to aceomplish that
object by the means which they deem adequate for the end. The
majority may, indeed, dccido bow far they will respect lh« rights
or claims of the minority; and how far they will, from policy
or principle, insist upon or absolve tlicra from olwdience. Bat
this is a matter on which they decide for themselves, according
to their own notions of justice or convenience, fn a genera)
sense the will of the majority of the people is absolute and sorer-
eign, limited only by their meana and power to mako their will
effectual' The Declaration of Independence (whieli, it is his-
torically known, was not the act of the wholo American poopte)
puts the doctrine on its true grounds. Men are endowed, It de-
clares, with certain inalienable rights, and among these oro life,
liberty, and the pursuit of happincea. To secure these rights
govcmiucuts are instituted among men, deriving their just pow-
ers from the fintaeiU of tlie governed: Whene^'er any form of
gorcmmeiit bdcomes dcstructi\'e of these ends, it is the right of
the people (plainly intending the majority of the people) to alter
or to abolish it, and to institute a new gorcmmcnt, laying its
foundation on such principles, and orininizing its jwwcrs in such
forms, us to them shj^l seem most likely lu elTect llioir aafo^
and hap])ine8s,^^ — ^^
§ SAl. But whatever may be the true doctrine as to the natnre
of the original compact of society, or of the subsequent institu-
tion and organization of govcroments consequent tliereoo, it is a
■ 1 T9tkw'* BImIc. C<mm. App- 1<S ; 14. 17% 173 ; Butia'a AfpMl from bb« K*w
to the Old V/kiff i OroUm, B. S, di. 5. 1 17.
■ Ur. Omu, In hU Ap|wndis to the nimh nddinD of Us AbridpiMat. ha* euvintd
lUi Mtj^ vtrj mnth al Utgt. Smv Mfxciallf, f«gm 37 t» 43. Mr. L<ocke. tl» matt
■tnnnau latrtfr of libfHj aad of i)m oifgiMl towpct et tndtiy, <iiat««iila nMliitelj
fur thk i»tr«r of l^c nii^orily to bind tbc Minority, mi nrMMuyoaoilillMi ibDw
mi^imI IbniMtioii iJmtietft hetk* on Oowmwl, B. 9, oil. fl^ b«M | BB to } lOfc
CB. ni.]
satcrk op the coNSTmmoN.
2S9
verjr uajustifiable course of rcaiioning to connect with the theorjr
all the ordinary doctrineg applicable to municipal contracts b«-
twwn individuals, or to public conventions between nations.
Wu bavo ftlrwidy st-cn that tJie theory itiieU is subject to many
qualilicationx ; but wht-tbor true or not, it is imgKwsible, with a
just regnrd to the ubjeets and iQt«n%te o{ soctuty, or the nature
o[ compActs of government, to subject thcni to thi- sanic con-
structions and conditioua aa bvlong to poeitivo obligations crc<
At«d between iudepcndont parties contemplating a distinct and
personal responsibility. 0»c of the Grst elementary principles
of all contracts is, to interpret them acconlin^^ to the intentions
and objects of the parties. They are not to be so constmed U
to subvert the obvious objects for which they were made, or to
lead to resnlta wholly beside the apparent intentions of those who
framed them. >
$ 332. Admitting, therefore, for the sake of argnroent, that
the iuRtitution of a government i» Jo bo deemed, in the re-
stricted sense already suggeatcd, ainnlHnal compact or contract
between each citizen and the whole community, is it to be con-
strued as a continuing contract after it« udoptiun, so oa to involve
the notion of there being still distinct and indejiondent parttas to
the instrument capable and entitled, as matter of riglit, to judge
and act upon its conatmction acC'^rding to their own views of
its import and obligations ? to resist tlie enforcement of the
powers delegated to the government at the good pleasure of each ?
to dissolve all connection with it, whenever there is a supposed
breach of it on the other side 1 ' These are momentous ques-
tions, and go to the ^'cry foundation of every govenmient founded
ou the voluntary choica of tlto pooplo; and they should he seri-
> It «M llw otMUmUon of Ik* coMMimiieM dt^dbl* turn Hm %hn)rf oT m
origiiMl «ubd«tJii^ MmpKt bM««M tlia people, upon the int ronnathai of cItII tode-
Be* and ggwraweatii Oat iailMed Dt. Pvley to t^Kt iL H# npin^d ^*U if 'A-
mitMd, ha fitndiaMtital primripha wtn «till diqnitiUe end mKeKam ; that if fauDilcd
oa CMDfact, lb* form el ganmmaal, howent atmid «t iacoiiT«MiBiii, vu uOl nWig>
Utj i mmI that «Tn7 vkbtloD of tb* Mmpwt fnvolnd ■ Hgbt «( rcMIko ud ■ Jf«-
wtatiM of the gDnniBML Pahj'i Mond PfaikMphy, B. fl, oh. S. Ut. W'ihm
(•AMwaM* Hr. Jiartim WiUoa) uiismI Ilia Mate «tjt«ti«B Tcty foraUyJn tha PmD«jl>
nala Coimtttlon (or adofitlBg the OoMlitaikfi. S EIUot'« D«t»tB% 2M, W. SBH
Hr. HiiiM MiMM»r« th* trae iMaon ht olwdfrao* la fararaniaM t« b*, not a OMitraet
or pRHDJM to otmy, but the bet thai aodrty ooaM oet otbwvlat fnWit. 1 none'*
tmj% EaMflS.
• » Dno-i Abridg. eb. 187, art. 30, | 18. p. BM.
2iO
coNarrnrnoN op thr usited states. [book ni.
ously inrcstigated before we admit the concluBiona which maj be
drawn from one aspect of tiiem. *
5 338. Takp, for instance, the conatitntion of MniuachtisO'ttR,
vhich in its preamble contains the declarutiua alrvad}' ijuutcd,
that government "is a social compact, by which the whole
people corenauts with each citizen, and each citii«n with tiio
whole government;" are wo to constrae that compact, after the
adoption of the constitution, u still a contract in wkioh each
citizen is still a distinct party, entitled to hia rvmody for any
breach of its obligations, and authorized to separate himself
from the whole society, and to throw off all alles-iancc whenever
he sufUMJscs that any of tliu ftmdamvntal principles uf that coin-
pact are iiifrtnKed or misconstrued ? Did the people iiitead that
it should he thus in tho power of any individual to dissolve the
whole government at his pleasure, or to absolve himself from all
obligntions and duties ttioreto at his choice, or upon his own in-
tcrprr-Uitiuii uf the instrtuneut? If such a ])ower exists, where is
the permanence or security of the guvommeot? In what manner
arc the rlf;hts and property of the eittzcns to be maintained or
enforced? AVbere are the (lulios of allegiuncc or obedience?
May one withdraw his consent to-day, and reassert it to-morrow ?
May one clniui the protvctiun and assistance of the laws and in-
stittilioiis to-day, and to-morrow repudiate them ? Hay one de>
Clare war against all the others for a auppoacd infringement of
the constitution ? If he may, then each one has the san>e right
in relation to all othera; and anarchy and 'confusion, and
not order and good go\'emmcnt and obedience, are the ingredi-
ents which are mainly at work in all free institutions founded
upon tlio will and choice and compact of the people. The ex-
istence of the government and its peace and its vital interests
will, under such circumstances, be at the mercy and even at the
< Mr. WoodnM (ElomenUof Jtiti)p^p.K}aafs,"Ilawenrt>i«liiMMfialbetw*y
b* of m tnrUI Mioput, gcn-<niiii«iit onf^t to be u»d li g*n«nll; rastiittrad M fannjcj
«a) «WMMit, Udt, or eijmak or » ml or (hoW eotapwc. TU* Ibtocy iia asteikl
bisb «r politkal nehu : and m • thMcMJMl pofait U Mt to» difimit M ba ariirtitDed,
ke. Tfot'thnt aaeh cenoBit U •alMnquvntlynTOGablaMIliavfll.CTeiiof tUtliawl*-
JeeU «t the lUlc, for (hat wauU (■ nuking a put of th* Mmmunlty njUAl In fvwa lo
llM whole ctfifftatUy, and Npwrior to Hi* nl«« ttumof tttn tkilr ettahlbhaMnt.''
Bowww qawitonabU tKtoUitarpodtlMi aiajr b« (bdJ It b opon to inanT a( jMtisM ;
•N 1 WtlBaa'* LMtsn«, 417, IIS, 119, (SOK It borUin that ■ rlglit of tlia nuBcvltf
to wltMnw from Uie gsraniinaul^ and to onrtkrov Ua po<nn. biu &» tovodatko In
a>7 Jwl naMning.
CO. HI.]
iTATimB OF Tui: coNsnruTidK.
241
caprice of a single indiTiJiuil. It would not only bo vain, hut
luijust to ptioi»h him for disturbing sociotjr, when it is but hj a
just cxorciMC u( thv original riglita rcflcnrc^t to liim by tbu com-
pact. Tlio maxiui ttiut in ovcry f^jvcrnmcut the will of the
iiiajoriXv xlialt and Qtiglit to govcni _tli« ivat, would be tlius sub-
verted; and Mcicty would, in effect, be reduced to it* original
«lcnienta. The association would bo temporary and fugitive^
like tho»e voluntary meetings among barbarous and savage com-
uiunili<!s, where each acts for himself, and submits only while
it is his plc'imiirc
I 834, It can readily be nuderstood in what manner contracts
entered into by private persons are to be constniod and enforced
under the regular operationi* of an organi7.ed government, I'nder
Buch circitmstunces, if a hi-each is insisted on by either side, tlie
proper redress is administered by the sorereign power, through
the medium of its delegated fimctionaries, and usually by the
judicial department, according to the principles established by
the laws which c«>mpo»e the jurisprudenoe of that country. In
such ft case no person supposes that each party is ut liberty to
InsUt absolutely and positively ujxjn his own construction, and to
rodrcss himself accordingly by force or by fraud. He is com-
pellable to submit tlie decision to others, not chosen by himself,
but epiKiinted by th« govcnmient, to secure the riglits and re-
dress t)>o wrongs of tJic whole community. In sucli cases the
doctrine prevails, inter If^et tUmt arma. But the reverse maxim
would prevail upon the doctrine of which we arc speaking, inter
arma tilent lege*. It is plain that such a resort is not contem-
plated by any of our forms of government, by a suit of one cili>
zen against the whole for a redress of his gi-ie'.-ances, or for a
Rpecilic performance of the obligations of the constitution. He
may hare, an<l doahtless in our fornis of administering josticQ
has, a complete jirotection of his rights secured by the constitu-
tion, when they are invaded by any other citizen. But that is
in a suit by one citixen against another, and not against the body
politic, upon the notion of conflict,
§ SSo. It is easy, also, to understand how comimcts between
independent nations are to be construed, and violations of them
redressed. Nations, in their sovercijm character, are all upon
an equality, and do not acknowlclire any superior by whose de-
crees they are bound, or to whoso oplaious tboy arc obedient.
VOL. I. — IQ
242
COKOTtTDITON OP THE TOITBD STATES. [OOOK ttl.
Whenever, thorbforc, any difTcrcnccB arise between them as to
dio int«rprctAtioQ of a treaty, or of the breach of its tcruut, thero
is ao c-ouimou arbiter wliom they are bound to acknow-liilgc, hav-
ing authority to decide them, lliere are but three modes in
which these differences can l>e adjusted: first, hy oev negotia-
tioiu embracing and settling the matters in dtspiito; secondly,
by referring the same to some common arbiter, j»ro hae vice,
whom thny inrc-iit with such power; or, thirdly, by a resort to
amu), which is the u/ft'ina ratio return, or the lost appeal betwocn
Hovernigni).
§ 386. It seems equally plain, that in our forms of govern-
ment the constitution cannot contcmplatfi cither of thc-sc modca
of interpretation or redress. Each citizen i» not suppotied to
enter into the compact, as a sovereign with all the othvn) as sov-
ereign, retaining an independent and oootgual authority to judge
and decide for himxcU. Ho hut no authority reserved to insti-
tute new Q<.-gotiations, or to suspend the o]>erations of the consti-
tution, or to compel tho rcfercnco to a common arbiter, or to
dcclaro war ogninst the community to which he belongs. >
§ 837. No su<.'li claim has ever (at least to our knowledge)
been asserted by any jurist or statesman in respect to any of oar
State constitutions. The uudoratunding is general, if not uni-
Tersal, that, having been adopted by the majority of the people,
the constitution of the State binds the whole community proprio
in09r«; and is unalterable, unless by the consent of the majority
of the people, or at least of the qualified roturs of Uie Slate, in
the manner prescribed by the constitution, or otherwise provided
for by the majority. No right exists, or is supposed Ut exist,
on tho part of any town or county, or otiier organized body
within tlie State, short of a majority of the whole people of the
8tat<.s to alter, suspend, reflist, nr dii»nlve the operatinns of that
constitution, or to witJidraw themselvea from its juriadiction.
Uuch lees is the compact supposed liable to interraplion or sus-
pension or disdulution at the will of any private citizen upon his
own notion of ils obligaliuns, or of any infringements of them
by the constituted authorities.* The only rodrcas for any such
infringentcnts, and the only guaranty of individual rigtita and
property, are understood to consist in the peaceable a{>peal (o the
proper tribunals constituted by Ihe govenunent for such puiv
1 Dhb'* Aff. I II, p^ ss, M.
CB. III.]
NATURE OP THB COKSTlTUnW.
248
poses; or if these should fail, by the altimate appeal to the good
aenso and intogritj and justice of the majority of tho people
And UiiH, according to Mr. I.iOcke. is the true m-iisi^ of the orij^-
nal compact, by which every individual has surrendered to the
majority of the society the right permanently to control and di-
rect the operationn of ^vernmrnt thei-cin. '
§ 'i&9. 'Hie true view to be taken of our State constitutions fa,
that they are forma of government ordained and established by
the people in their ori|pnal novereign ca[tacity to promote their
own happinesa, and |M^rmanently to secure their rifihtK, property,
independeoce, and common welfftre. The langua^^ of nearly all
theac State constitutions is, that (he people do ordain and estab-
lish this cunstittitiun; and where these terms are not ospresaly
lucd, they arc necessarily implied in the very sub«tuncc of the
frame of government.' Tbey may be deemed compact* (thou^
nut generally declared so on their face), in tlio acnao of their
being founded on the voluntary consent or agreement of a major-
ity of the qualified voters of the State. But they are not treated
as contracts and cnnvontiona Mween independent individuals
and communities having no common umpii-e.* 'Hie language of
tbesc instruments is not the usnnt or approjirinte language for
mere matters resting and forever to rest in contract. In general
the impurt is, that (h« pet^le "ordain and establish," that is,
in their sovereign capacity, meet and declare what shall be the
fundamental Law for the gnvemnifnt of thomsielveit and their
posterity. Even in tlie constitution of Massachusetts, which
more tlian any other wears the air of contract, the compact ia
declared to be a mere "constitution of civil government," and
the jieople " do agre« on, ordain, and establish the following dec-
laration of rights an<l frame of government as the constitution of
gOTcmment." In this very bill of rights tho people are de-
clan-d "to have the sole and exclusive riglit of governing them-
selves, as ft free, sovereign, and independent State;" and that
■ l^ko on GormBtM, & ^ tk. S. $(»S W lt>0 ; eh. 19. SHI UO, SH. UO. 34S ;
I Wtbun'* U<r UKtarw, 810. Kt. <17, 418. Ur. Dn« (Apf. p. St) Mp, thu if tbtB
be i&f ooinpacti It 1* • oMiifaai l« nuk* « OMiUftuUon ; aiid thM (to«Mv tbo ^twtmwil
U il an end. I( ihm bmoma w octcnlM) ountnrrt. isil, Mcofding to Uia ialort of th«
pMUcs, • fbadmicnUl Uw.
* Daor'i An>. %i 19. 17, pJL S», DO 1 Id. I It. pp SS, it.
• H«B»ixlQ*,KkBiNi. JnitiKaliir. l..S,ch. <,ff lOStollSifSTurobaU, Rdiwa:.
p.M)i*6.
244
C0K3T1TUT10K OF THE UNITED BTITES. [bOOK III.
"tlicy have an incontestable, tiiialienable, ftnd indefcaAible right
to institute government, and to reform, alter, or totally change
the a«me, wlien their protection, safety, proftiKrity, and happi-
ness reiuire it" It is, and acconlingly has always been, treated
aa a fundamental law, and not as a mere contract of (^vemroent,
during the good pleasure of all the iiersona who were originally
bound by it or assented to it.'
§ 389. A constitution is in fact a fundamental law or baaia of
government, and falla strictly within the dofmitiun of law as
given by Mr. Jtiatice Blackatoue. It is a rule of action prc-
BCribed by the supreme power in a state, regulating the rights
and duties of the whole community. It is a rtUe, aa contradia-
tingiiished from a temjwrary or sudden order; )>ermancnl, uni-
form, and universal. It Is aUo called a rule, bo distinguish it
from a compact or agroomeat; for a compact, lie odds, ie a ]>rDin-
Ise proceeding from us, a law is a command directed to us. The
language of a ouuii>act is, I will or will not do tliis; that of a
law is, Thou shalt or slialt not do it* "In compacts we onr-
■elvca determine and promise what shall be done before we are
obliged to do it In laws we are obliged to act without ourselves
determining or promising anything at alL"* It is a rule pre-
scril^; thnt i«, it ia laid down, promntgated, and established.
It is proscrilfed by t)ic sitprenio power in a state, tliat is, among
!», by the people, or a majority of tliem in their original sover-
eign ca|iacity. Like the ordinary municipal lairtt, it may be
founded upon our consent or ttiat of our represeiitatiTcs; hut it
derives its ultimate obligatory force as s late, and "not as a
compact
§ 340. And it is in this light that the language of the Consti-
tution of the United States manifestly contemplates it; for it
declares (article iJth) that this Constitution and the laws, ice,
> Hi. tmttict Ctam, in Wan v. UjUmt. S ObH. R. 1M, deekrw the constitetwn ol
• Stsu lt> t» Uw (tmLwtatol law d tli« Sl«tc. Mi. DiuiBbMwidigrBat(ora(MiiI,lbu
K oMutiiatini b a thing eomtitulnl. ui iMtniinnil onkliwd mi MUUUud. If •
coMoUttM IhwM • MMttMtlMk for ■ Sut^ mkI Hi* pMpU thanof ntrt la ihdt ttnmal
«MiDIM( uiJ ftUj it, ll b a «OMtitBtioa g»d>bMd ud wtabtukMl. «ii<l not a Mnpaet,
or «a«inct taonit ih* MontiM. So if tlMj meti in •mral hmu uiJ nOitj it, It la a
«OMpMt tmo^ littm. A aonfwt anoig fltatea b a eonibdMattaii. ami b almTS aa
naanit (la wm the M canftdwition), ami MnraMoalitatiaB. V Uaa*'aJtl»U|^cBt,
ek. }t7. art, «a. t U. P- UO.
■ 1 IBiek. Cc«nin. SS, 44, *& 8m al*» Bntbiwiai. Put 1, cti. S. p. U, K 1. 4,
■ 1 BlaiL CouuB. 4fi.
CH. in.]
KATDRB OP THE CONSTtTDTIOK.
24d
and treaties mtido nndcr the authority of the TTnitcd States,
"»hall be the supreme law of tlic lund." This, aa hsm Iwen
justly observed hf the f'^denUtst, result* from the very nature of
political itiittibitiona. A law, hy t}ie very mcanini; of the terms,
includes siiprema<;y. ' If individuals enter into u stutc of aociety,
the laws of that aociety munt be the supreme regulator of their
conduct. If a number of political flocietiee enter into a larger
political Bociety, the lawB which the latter may enact, pursuant
to the powers intrusted to it by its constitution, must he supreme
over those societi(« and the individuals of wliom thoy arc com-
po«c<I. It would othcrwiBC be a mere treaty, dependent' on the
good faith »A th« parties, and not a ffwemtneni, which is only
another word for political power and supremacy,' A State con-
stitution is then in ft just and appropriate sense not only a Zctw,
but a supremo law, for tho government of the whole people,
within the range of the powers actually contemplated and the
_ri^it secured by it. It would indeed, bo an extraordinary ose of
igungo to consider a declaration of rights in a const itntion,
and especially of ri^its which it proclaims to be "unalienable
and indefeasible," to be a matter of contract, and rvating on
such a basis, rather than a solemn recognition and adnussion of
those rights, arising from the law of nature and the gift of Prov-
idence, and incapable of being transferred or surrendered.'
> Tlu) F«<l«nlMt, Ko. 83. 8MBbo,NeLl9. ■ Tb« FedtniUM, So. SC '
■ Ur. Adttui, In liU omUou ob tb« lib of July, l&ll, vte the roJlowing luigoaga:
"la th* coiutitutlon oriklneonunoowMtlb (UaMMcluMott«]itUi)ccktRl tlMttbebodj
poHtia U lamti hj « wlwiUry mmcUUoii of tadividuU: ihU il b a Hxial OMn>
pKUkis. Tbe bed; politic el Uu DnludSUU* vh fotaacil li; kvoliintatTamcUtloB
ot th* ftofU «l tlw nnltcd colotuM. TW DrclantioM of Inikpoiikfiw wia ■ wcial
a>m|M4,by whicklliewlwJfF*"!''**''"''"'**^^''^**^**^''^''^ tlwnaitedMtania^
ud cwfa dUaan •ith tliB whob pM|4*, tlwt Iha onilod ooloatni vnr, and «f riRlM
ought to be. frw uid indcpciultat SlalM. To thl* co«pM4, naion wai ai yitti m frr«-
doDi and iiul«[ini>leoM. FrniD the boui of (hat lnd«|mdrac« no on* ot ih# SiatM
■rlioM (aupir win fuiit* to it oonld, witbont ■ riolatSon of Ibat priuiilit* oonpact,
MMda m MpuaW ftom lb* rant. Rach tnw pledged to all ; and aU were pledged to
«adhatb«rbTaaciqe«rtornu1. wtlbout limiutlon of Unu, in tho pmwiKc of Alnugbtjr
(M, and pradaimad to all touikM. 1W oolodita wtn not daduol Ui b« wnnlyB
Sam. Til* tcnn ' uvnalga ' U not orcn to bo fonad In tb« Dfclanlio*.'* Afpiu,
" Out DNbiatiui of ladcpfadnnor, oni Omrcdcimtian, on ConMitntian of the Unlttd
StiUn, and all oui Stat* (ooalilalliini, Klthont a dnglo axotfAkm, luro baen •nhimtuj
^^enfteta, dcriring all thrir a«tborilr tnm lb« trmDmmnt of Ibo paniw to thnn."
^Pwd h« pfMMda to utatathat tha modem itoctrina of mtUfioatian of tb« U«« of tha
^^L CdIm, by • ilnicle Stata, U a anladam of luigMpi aad Uapicta •pV-oaatmUoliou, and
gsM lo the dMlriMllan of Oa gvranuBWt aad tha tlaloa. It u ptiin, tnm Uu >hol«
246
ION OF TOE DKll
[book in.
§ fi41. The resolution of die convention of the Peers and
Cominona in 1688, which deprived King James the Second of the
thrnno of Kngland, may pL-rhup^ be tbouf;hl by some persons to
justify the doctrine of an orieinal comfiavt of goTornment in the
fcnse of those who (Iih-Hi the Constitution of the United Statts a
treaty or lea^e between the Slat«8, and rcstiu{i nwrely in coo-
tract. It is in the follon-iug vords : " Ko^olvcd, that Kiiiff JomCB
tho Second, huvinj; endeavored to subvert tlio Coustituliou of the
kingdom hy brtakittff Ike oriffinat eontraet bttween kioi/ and peopU,
and by tliu advice; of Jo»iiit8 and other viciEed per»oii8 having
Tiukt<.-d tbu fiuidnnivutnl lawn, and withdrawn himself out of the
kingdom, hatli abdicated the government, and that the throne is
thereby become vacant" '
§ !j42. It is well known that there was a most scrions differ*
cuce of opinion between the House of Peers and the House of
Commons iii>on the laugoage of tliis resolution, and eapeeially
upon that jiart which declared the abdication and vacancy of the
throne. In consetjuence of which a free conference was held by
committees of both housca, in which the moat animated dotates
took pkc« between some of tlie most diatingnishod m^n in the
kingdom. But the Commons adhering to their vote, the Lords
finally acceded to it The whole debate is preRen-ed, and the
reasoning on each side ia given at large.* In the course of the
debate notice was frequently taken of the expression of breaking
the original contract between king and peojtie. The Bishop of
Ely said, "1 may say, that this breaking the original contract is
a language that hath not been long used in tliis place, nor known
in any of oar law-books or public records. It is sprung up, but
as taken from some late authors, and those none of the best re-
ceived; and the *-ery phrase mi^tit licar a great debate, if that
wore now to be spoken to." "The making of new laws being as
much a part of the orif^inal compact as the observing old oaos,
or anything else, wo are obligi_-d lo pursue those laws till altered
by the legislative power, which, singly or jointly, wltliout the
royal assent, I suppose wu do not protend ta" *^We must think
WMawiBg a( Hr. AtUsM, Uwt wlian he (faik* of tb* OooMiMtiaa m k eooqwrt, Iw
iMtna M Mors tbtn ih^ li ii • votaaurjr (ml MtNM MHnt oT Um laopif to wkfit it.
a A torwtol gartrnmnAt mi Mt * treuf «bl%»lioa Ut b» »tnipi«l rt will hy » tJa-^
> 1 Bl*di. Cmiub. 311, nS. Stt.
* IVUuncnurr Debo-.Mv IMS, tdU. 1712, p. SU, « wf.
OR. ni.j
MATDBE OP THE OONSTtTtmOtf.
247
Rare that meant of the compact that wiut mado at fimt time, when
th« govcmm«ut was firat instituted, and the conditioiu, that each
part of the ^vcrnment ahould olifterve on their part; of which
thin wag inottt fundamental, that king, lords, and commona In
Parliament aascrabled shall hare the power of making new laws
and altering of old onea."' Sir Gporp; Treby said, "We arc
gone too far, when wo oBFer to iB([uire into the original contract,
whether any such thing i» known or understood in onr law or
Conatitution, and whether it be new lan^age among us. " "l-^rst,
it is a phrase u»<.>d by tlie learned Mr. Hooker in his book of
Eccli'siuatieul Polity, whom I ineiitiou oa u valuable authority,"
Ac " But 1 huTC yet a greater authority than tltis to influence
this mnttxir, and that is your lurdship's own, who hare agreed to
nil the vote, but this word, abdi<'afe4, and the vacancy of the
throne." He thcu supposes the kinjf to say, "The title vS king-
ship I hold by original contract and the fundamental cunstitu-
tions of the government, and my Buoc«s8ion to uiul {x«sessioo of
the crown on these terms is a part of that contract This pftrt
of tlie eontract I am weary of," Ac* The l-Inrl of Nottingham
said, "I know no laws, as laws, hut what are fundamental con-
stitalious, as the laws arc neccssarj' so far to support the foun-
dation,"' .Sir Thomas Lee said, "TIms contract was to settle
the Constitution as to the legislature; and it is true that it is a
part of the coiitraet, the making of laws, and that those laws
should oblige all sides when made. But yet not so as to exclude
this original constitution in all governments that commence by
compact, that, there should be a power in the states t» make pro-
vision in all times and upon all or4!ssion8 for extraordinary cases
of necessity, such as ours now is,"* Sir GoorgB Treby again
said, "The laws made are certainly part of the original contract,
and by the laws made, Ac, we are tied up to keep in tlRi heredi-
tary line," Ax,' Mr. Sergeant Dolt (afterwards Lord Chief Jus-
tice) said. "The government and magistracy are all imdor a
truat, and any acting contrary to that trust Is a renouncing of
the trust, though it be noi a renouncing by formal deed. For it
la a plain declaration by act and deed, though not in writing,
that b« who hath the trust, acting contrary, is a disclaimer of
> Piril— Mfi? IJxhiUi, leM, (diL 1712, I>^ S17. su.
« Id. pp. 121. SSS, Tit. ■ Id. pp. SIS. 130.
* 14. p. 2t«. * Id. ^ i».
248
COSSTITtmON OP THE UNITED BTATIS. [BOOK III.
the trnsL"* Mr, Sergeant Uaj^nard iwid, "The Constitution,
notwitlwtaDding tho vscancr, in the Btme. The laws, that are
the foundutioiia uud rules of that Coiutitutiou, ar« thv sumc.
But if there Ik- in onjr iiwtujicc a breach of that Oouslilution,
that will t)0 on olxlicatiou, and that abdicatiou will ooiifor a
vacaitcv."' Luni NoUinf^iam Batd, "Acting against a mail's
truHt, gay» Mr. iv^rgeant Holt, is a renunciation of that trust
I agree it is & violation of his trust to act contrary to it And
he is a<vountable for that violation to answer what the trust
suffers out of his own estate. But I deny it to be presently a
renunciation of tlie trust, and that such a one is no longer a
trusttw."*
§ 348. Now it is apparent from the whole reasoning of all the
parties, that thejr were not considering how far the original m>
stitution of govemtncnl was founded in compact, that is, how far
society itself was founded upon a social compact It woa not a
<)U€8tion brought into discuasiun, whether each of the people con-
tracted with tho whole people, or each department of the govern-
ment with al) others, or each orgaiiited community within the
realm with all others, that there should be a frame of government
which should form a treaty between them, of which each was to
judge for himself, and from which each was at liberty to withdraw
Bt his pleasure, whenever he or they supposed it broken. All of
the speakers ou aiP sides were agreed that the Constitution was
not goue; that it remained in full force, and obligatory upon
tho whole people, including the laws mode under it, notwith-
standing the violations by the king.
§ 844. The real point before them was U|>on a contract of a
very different sort, a contract by which the king uixm taking
upon himself the royal office undertook, and bound himself to the
whole people to govern them according to the laws and constitu-
tion of the government It wan, then, deemed a contract on his
part singly with the whole people, they constituting on aggregate
body on the other part It was a contract or pledge by the ex-
ecutive, called upon to assume on hereditury, kingly uutliority,
to gorern according to the rules prescribed by the form of gov-
ernment already instituted by the people. Tlie constitution of
government and its limitaiions of authority were sujtposcd to be
t PkriiuMsarr DtbUe*, ICU; edit. ITU, ^ SIS.
* u. p^ as. sit. * u. p. saoi
CH. ID.]
KAtDBS OP THE OOXBTITUTIOM.
249
fixed (no matter whether in fiction only or in fact) ontwcdcntly
t« hia being chosen to the kingly ollice. Wc can readily under-
Btand liuw suoh a contract may be formed and continue even to
exist. It n-as actually mudv with William the Third, a few days
afterwards; It huui been recently mode iu France hy tCing l-uuis
Philippe, upon the expulsion of tlic old line of the Bourbons.
Bat in botli the»e coses the coimtitution of gorcmment was sup-
posed to exist inijepeiident ol, and nutccedcnl bo, this contract.
Theru was a mer« call of a partjoular party to the throne, atreadf
cetablisbed in the jiovernment, ujwn certain fniiilftint^ntal condi-
tions, which if violated by the incumbent he broke his contract^
and forfeited his right to tlie crown. But the constitution cf
go^x-mmcnt n^mained, and tlie only point left was to supply the
Tacancy by a new choice, '
§ 345. Even in this case a part of the people did not undertake
to declare the compact violated c»r the throne vacant. The dec-
laration was made by the peers in their own right, and by the
commons by their roprvsontativcs, both being awcroblcd in ooo-
Tention expressly to meet tlie exigency, "For," says Block-
Stone, " whenevur a question arises l>etwoen tlie society at large
and any magistrate vested with powers originally delegated by
that society, it must be decided by the voice of that society itsell
There is not upon earth any other tribunal to resort to. " '
§ 846. This was precisely the view entertained by the great
iiCTolutioiuiry Whigs in 1688. They did not declare the govern-
*ineat dissolved, because the king had violated the fundamental
laws Olid o4)ligution8 of the Constitution. But they deelarcd that
those acts amounted (o o renunciation and abdication of the gor-
emraent by him ; and that the throne was vacant, and must bo
sopplied by a new choice. Tlie original contract with him
[ was gone. Ho had repudiated it, and lost all ri^ta under it
But these violations did not dissulvo tht; social organization, or
vary tin- existing Constitution and laws, or justify any of the
subjects iu renouncing their ov.ii allegiance to the government;
but only Iu King James.' In short, the govermuent was no more
t 1 Bbck. Cotna. 312, SIS. ■ 1 SOtA. CMdib. til. 213.
■ 1 BUcIc ComM. 313, SIS. Tha MDM dontriM* mr* >TO««d \>j Ihn gmi Vliig
Itadonoftlw llwueorraaMiMMUi tb* irialof Dr. SMbvTvrrft bnlTOS. Ur. RmA«,
In hit Appmi Gram Um Kc* to Out (Nd Whigi, ha* prm « Hmoun; of Ik* imnnli:
' ami wSffotuA it bj oepioos utnct* (ram Um trkl.
coNSTironoN OP the dmtkd states. [book m.
dissolved than otir ou-n would be if the Prosidcat of tlii- Unit«d
Statts eliotiid violate liis constitutional diitic«, and upuu un im-
peai-Iitnout and trial aliould be removed from oSvx.
§ 347. There is no analogy whatsoever between tliat ca»e and
the g«)v«rnment of the Cnited States, or the social Qam\iact, or
original con«titutioii of goverumvnt adopted by a people. If
there were rtnj analojry it would follow that vverj violation of
the Oitutitution of tho Uoitod Htutos by any depurtuient of the
govenuBont would amount to a renunciation by the Invumbont
or iiiciimbt-nta of all rii^hta and powi^m conferred on that depart-
ment by the Coiuitituliua, ipto/acto, k-aviu); a vacancy to be
filled up by a new choice; a doctrine tliat baa never yet been
broached, and indeed is utterly unmaintainable, unlcuA that vio-
lation ia ascertained in some mode known to the Const iiutioii,
and a removal takea place accordingly. For otherwiao such a
Tiolation by any functionary of tho goTCmmeut would amount to
a renunciation of the Conatitution by all (he people of the United
States, and thus produce a diaaolulion of the governnieDt m m*
itanli ; a doc-lrioo SO extravagant and 80 aubveraive of the rights
and liberties of tlio people, and t)0 utterly at war witli all princi-
ples of L'ommon aense and common justice, tlint it could never
find its way into public favor by any ingenuity of reaaonir^ or
any vagarira of theory.
§ 848. In short, it never entered into tho heads of the great
men who accomplished the gtorioua Re^'oUition of 1688 that a
constitution of government^ however originating, whether in
positive compact or in silent assent and acquiescence, after it
was adopted by tho people, remained a mere contract or treaty,
Op<^'n to t|iie9tion by all, and to be annihilated at the will of any
of Ibem fur uny BUpfMsed or real violations of its provisions.
They supposed that from tho moment it became a Constitution
it OMSod to Ih- a compact, and liecume a fundamental law of al>-
flolnte paramount obligation, until changed by the whole people
in the manner preseriltt-d by its own rules, or by the implied re-
sulting |K>wer l>elonging lo tike people in all caaca of neceanity to
provide for their own safety. Their reaaoning was addrcased,
□ot to the C<Hi8titutian, but to the functionariea who were called
to administer it. Tlicy deemed that the Constitution was im-
mortal, and could not be forfeited : for it was prescribed by and
for the benefit of the people. But tliey deemed, and wisely
CH. itr.]
KITCBB OP TBB OOXSTITtmCHI.
deemed, that the magiNtracy in n triii^t, » fttlonin public trust;
tnd he who violates hiH (lutie.i tarfeita bis own right to oRice, but
.cannot forfeit the righta of the people.
§ S49. Tlic subJL-et hiu Ijcen, thua far, considered chiefly in
reference to tbo puiut bow far govLTumeut is to he considered as
ft eompael, in Die svuse of a contract, as contradiatingi^isbed from
an act of solemn ackuowlcdgiucnt or auicnt; and bow far our
Stute constitdlioiis are to be deemed such contracts, rathor than
Amdamentnl laws prescribed by tlto sovcreif^i power. The con-
eluaion to which we have arrived is, that a State cotwtitution •
is no further to be deemed a compact than that it is a matter
<d consent by the people, binding them to obedience to its requi-
BJtiona ; and that its proper character is that of a fundamental
law pn»cribcd by the will of the majority of the people of the
[fitate (who are entitled to presenile it), for the Kovcmniont and
ITegulutiou of tlie whole people.' It binds them OS a supremo
nile ordained by the sovereign power, and not merely as a volun-
tarj- contract entered into by parties capable of contractinfe and
binding thcmselvcM by such terms as they choose to scIccL' If
I this bo a correct view of tlic subject, It will enable us to enter
'upon the oth4>r pnrts of the proposed diiicdssiou with principles
to ^lide us in the illustration of the oontroversy.
S 850. In what light, then, is the Constitution of the United
States to be regarded ? Is it a mi-ro cuni[«ct, treaty, or confed-
eration of the 8tates camiMwinf; the Union, or of tlie people
thereof, whereby each of the sevcnd States, and the peopl«
thereof, have respectively bound tttemselves to each other \ Or
is it a form of i^vomment which, having been ratiHed by a ma-
jority of (he people in all the Klates, is obliiiatory upon tht-ra, as
the pn-scribMl rule of condnct of the sovereign power, to the
extent of its proviiiious ?
) It b in Vk\» •inia> thai Mr. CMif Jaulee J>j b to b> imdantool la Ua •pialoa to
CUibalsi «L <'H«ticiii (a lull. R. 41»), «bn h* mj\ "Everjr State iMiirtitmian i» ■
QBmVct, (MiUhruri betwotn tha dtSsMu of tfa* SUt* Ui ipmra UiMiMdna b ■ «t-
lala niaannr ; ■nd lbs Conitiintka oT Uw Dniled SUIm i* Ukawlie a «oap*M, nwdo \if
lh« peopio «f tha Cnltfll BuM UgDVom the—itrw^ m to gfitil ot^teli^ in ■ tartala
nMfiarr." Th* ontoii atanilHitly *hMn UmI Iw osaMend it ■ hndMuiiU) )■« of
govtniiMat, ukd that lu foir«n<IUl not natoo awwtwty.lwtiww wipw»anilw«w
UtiaacaiafMdbf diajadhuIdapMtinant; aad ikat the Slataa vtto bMnil to obay.
• H<iiiiMd>K Elain. Juiia ^'■tuI. U S, ok. 9, H IW to US i S TusboU'* Heiatob
S62
CONffnTDTION OF THE CNITED STATES. [BOOK Ol.
^
§ 851. Let us coiisiiler, in tlto first place, whether it ia to be
deemed a compnct. Ely Ihis we do not meAn mm act of solemn
assent by the people to it, as a form of government (of which
there is no room for douht); but a contract impofiing mntual
oliligations and contemplating the permanent BultAiRtcuce of par-
ties having an independent right to oonstme, control, and judge
of its ohligationfi. If in this latter aeuno it is to be deemed a
compact,it must bo citlicr because it cuntaius on its face stipul^-.
tioDS to that effect, or because it is necessarily impliwd from
nature and ohjcels of a frame of government.
I 352. Tliere is nowhere found ujwn tlio face of the CcHistitu-
tton any clauss intimating it to bo a compact, or in any wise
providing for its interpretation as such. On the contrary, tJto
pn^umble cmphuticnlly epcjiks of It ss a solemn ordinance and
ratablishmentof gorcmmcDt. The language is: "We the pec^lo
of the United .Stiites do ordain and ettahihh this Cmittitution for
the United 8taltis of America." Tke ptfpU Ao ordtain and e«-
teAlUK, not contract and stipulate with e-aeh ulher.' The people
of the United Statt», not the dii«tinct people of a partimlar StaU
with the people of the other States. The people ordain and es-
tabliidi a "constitution," not a ** co^federatifn." Tlie distinclioa
between a constitution and a cunfedcratiun is well known and
nndcmtood. The latter, or at least a pure confederation, is a
mere treaty or league bctwwn independent states, and binds no
longer than during the good pleasure of each.' It rests forerer
in articles of compact, where each is or mar ho the supreme
judge of its own rights and daticii. Tliu former is a permanent
> TIiowMd**'oTdtli)>nil tAablUb " m alM bamd in Iha third wtkUoT tlwCeitiU-
'totl««: "TiMjmlioUlpytrvTMlwU b«*«*t«d tn«nt8«i|>niiiinC««rt, and la mck infe-
rior courti u Um Ceogmi may Cram Uin« to tiiue trtbun and aUMM.' Htnr U tfcU
to b« ikae bjr Congrow t PUslrbj'Bl*W|aadwheBOf4u*iBlmd«atobliifatd,b«u«k*
Lnr k nmtTMt «t eomptet betJcts tbe b^dUntn aad tlw peofilc, or tha conn, or IIm
I difftnnt defanmonU ot tbt Kavunatol I !<o. It 1* lukliiT sen Dor Ion ikak • kw,
l|ud« ti]rMiap«t«Qt HUlliotity, apo»*aaMrnt or i^jnitiBfpt tt tninil*. In MuUn ■■.
|Hnatar (1 WUtL R. SOi, 3^1), tha Sn^mm Comt'BiU. "TIm Cosrtitntion of Um
ValUd Stab* wu onlainad and atohlfalwd, not bjr tiie State* ia thdr ■ovoRfgn a*p<K«*
tioi, butprnjilutkallf, aiUio ptvuntilt of tha OeoMllttiUDn d«clUT«, 'bjr tlia people oT
the tJniled Statca.'" To tbcMfneaOMt btharMKinlnitof .Mr.C|ii'( JiuUw Man^ll,
iKd«UTiitrJ^Uuioiili>laiuortliPoa«rtls H iKMIodi r. MairUnJ (tlfWton.SH M3
to M5,a])Mdyrit*.l)
• ThB FedanlUI, No. 0, IS. IT, )8,$S ; W»b>ttr'«S|<w«hu. tB30) Dane'* Arp. |S,
, p. II. S 1*. !>■ 3fi. «e. ; Id. ( 10, p. 21 1 Hi. Hartia'* Lctttr. 3 Elliat. OS ; 1 T^Kkci'a
r Black. Omm. App. IM.
CH. III.]
RATtJU or THE COKSTITUTIOy.
2SS
form of goreromcDt, irlterc the powers, once giren, are irrevoca-
b)e, and cannot be rCKumcd or withdrawn at pleasure^ Whether
formed by n single pcojiie, or by different Bociettcs of people, in
tlicir political cupiiuity, a coustilution, thou^b originatiug in
consoiit, becomes when ratified obli^tory, an a ftmdamental
ordinance or law.* Tbc constitution of a coufcdfrutod republic,
that is, of a national republic fonncd of acvcrul xtutos, is, or at
least may ho, not less »a irrevocable form of goveruiuent tban
the constitution of a state formed and ratified by the a^^^vgato
of the several counties of the state.*
§ 858. If it had Wen the desifpi of the framers of the Coiuti.
tution, or of the people who ratified it, to consider it a mere coa-
federation, resting on treaty stipulations, it is difficult to con-
ceive that the appropriate terms should not have been fotmd in
it The Cnited States were no strangers to compacts of ibis
nature." They had sulisisted to a limited extent before the Rev-
olution. The Articles of Confederation, though in some few
respects national, were mainly of a pure federative character, and
were treated a» stipnlationfl between Stat«-s for many purpoiteB
indcixnidcnt and sovereign.* And yet, aa haa been already seen,
it was deemed a political hercay to maintain that under it anjr
State had a right to withdraw from it at pleasure and repeat
its operation ; and that a party to the comjiact had a right to
revoke that compact' Tlie only places where tltc terms w^fed'
trgtion or e^mpatt are found in tlio Cnnatitution apply to subjects
of an entirely different nature, and manifestly in contradistinc-
tion to corutitution. 'Ilms, in the tenth section of the first article
it is fk^arcd tliat '*no State shall enter into any treaty, alliance,
> 1 Wl!»ii'*LMtiim,4i;.
*8MTh<!Fedn>list,Ko.9; lii Ifo. IS, IS i U. S(^ SI i Id. No. 89.
* N«w EdkIumI CmMmmcijF of 14IS ) 3 Kmt'« Comon. Hit, )«1, I9t ; Rawie on
OoftR. IntnxiacL pit. M, 3S. In the o(iliiun«o of ITST, Tor tlu gnwrw— at ef tlw
ttrrttaij nonliwtst of the Ohio, aauia trtkU* «rm upmnljr d«dn«d !» bo " mIIiIm
of eampatt Mnta Uw ofitfintl 8utM(i. «. lb* Vailti Stum}, *b4 Um pMplo and
Sutw (SiaiM M /Wurn for lume wn tfam ia bciDg) ia Uw »M UrrilMy." Bat to
SWid i^Mrt *B)r piofbic diBboltf, it wu deelued tbtt tlMM lotiolci ritouM *' IbivTtr
■miiis ttnalunUa okIoh hf tumman onunU." 8a tlwt, lboii|^ a eomptti, ndthw
. fulj na «t llbmy to wltlxlrkw tnm it M !U |<I«miin, or lo ttNcln kwlf from tu
OtUpdoM. Wby <irtaa«llk*CDnititatioaef UietTnilailStataidMlindletoattlclai
. of coniaiit, U Lliat ww tb« intsntieo of tba frunBn I
* Tb* F«Ur«lbt. No. IS, 13, 39, 40, U [ GtbboM k OgilM, > Wlitatoii'i B. 1, IST.
* Tb« Ptdtnliit. No. SI ; H. Ho. tS.
254
CONSTITDTIOK OP TUB GKtTED STATES. [OOOK lU.
or confederation ;" "no State shall, without the consent of Con-
grem, ice, enter into anjr sgrcement nr compact with another
State, or with a foreign power." A^in, id the sixth article it
is declared that "all debts contracted and engagements entered
into before the adoption of this Constitution shall be as valid
against tiie United States under this CotuiitHtioH as under the
eo^federation," Again, in the tenth amendment it is declared
that "the powers not deUgated by the Constitution, nor pro-
hibited bv it to the States, ore reserred to the States respec-
tively, or to the people." A contract can in no just sense be
called a delegation of powers.
^L % 3.'>4. But that which would aocm conehiiiive on the subject^
^w has been already stated, is the very language of the Cooiti-
totion itself, declaring it to be a supreme fnndaniental law, and
to bo of judicial obli|j;atiaa and recognition in the administration
of justice. "This Constitution," says the sixth article, "and
the laws of the Caited States, which shall l>o teade in purHuancc
thereof, and all trusties made or which shall be made under the
authority of the Uoitod States, »hall he the supreme late of the
land; and the judgeM in every Stat* shall bo bound thereby,
antfthiait in the ComtittUion or latet of any State to the contrary
notwithstanding." If it is the supreme law, how can the people
of any State, either by any fomi u( its own constitution or laws
or other proceedings, repeal or abrogate or suspend it ?
§ 855. But if the language of the CtHistitulion were less ex-
plicit and irresistible, no other infcronoe could be correctly de-
duocd from a riew of tlte luituro and objects uf the instnmient.
The dwign is to establish a form of goTommcnt This, of itself,
imports legal obligation, permanence, and unoonlrotlability by
any but tlie authorities authorized to alter or abolish it. The
object was to secure the blessings of liberty to the people and lu
their |>oslcrity. The avowed intention was to supersede the oM
confederation, and substitute in its place a new form of go*-cm*
ment. We have seen that the inofficicHcy of the old confedera-
tion forced the States to surrender the league then existing, and
to establish a national Constitution. ' The convention also, whicii
> TW very fini tMolstioB tdopUd by dia <Mirt*don (ilx S-tntrv la two SUM) ma
la the rqllviing word*; "It«*olval, ^A it u Um afJiilon oT thli conimittn Ihiil •
natloual ([nnrniliaU Odglit lo Im cattUUIwd ot > tapimis It^JUiiin, judiuiair, nil
•mciitlv*- (JonriMl of CoiiTtittlan. pfn. 89, ISt, ItV, M7 ( i Miot'i DttatM, M,
CB. m.]
HATURB OP THE COKSTtTtmON.
256
frained the Constitution, declared tliM Iti tJio Icttvr 40compa&f-
ing it "It is obviously impracticable in tho federal govem-
lii«nt of these States," says tJiat lettor, "t« st-vure uH ri|i;l)tso(l
indepeDdcnt sovereignty to eacti, and yet provide for tho interest '
and safety <^ alL Inditiduals entering into society must give
up a share of liberty to pre«crve the rc«t."i "In all our delib-
erations on this subject wo kept steadily in our view lliut which
appeared to us tlie greatest interest of every true American, the
eoruolidation o/our Union, in which is involved our prtisfierily,
felicity, safety, perhaps our national existence." Could this be
attained cofl»i»tently witli the notion of an existing treaty or
confederacy, which each at its pleasure was at liberty to dJa-
solve ?*{i)
8m ml<n 3 ritkin'i Hutccy, 332) ; [JubI]! (bovtag tluit It mu a iMtMOMl gortnuMK^
mtt • Mni|iKt, vtiich tbt; <rcM abovt to catabliili, — > ni|>niMa b^ilativi^ jndidM;,
and exwntitc, and not a in*i« tnaly for th* mctcJm ot depandcBt povrcti dutliig thft
good pltaum or all ih« nwUa«Ung partir*.
■ jmifnal or CoavHitioo, pp. WT, 3118.
* The Ungw^ of tlM SnpPHM Court in GUibona v. Ogita (9 Vbtat. R- 1, IBT) k
Ttr; cxpfsaalTa «o tkU asbfcct
"JU jircUatlur; to ih« T«n aU* fiaenaiioni of tbt Cemritntten, wtitch vo haro
kond tna tint W, and at kavlng io«« mftiicu« an it> oHiatnielka, Kfueno* km
lMa nado to the politlMl lituatim of these Sut« nnl«tuff to ita (onnatkn. It haa,,
beta aald that tliay wcro tortnign, vera compU'ld; indtpaodMit, aad wen cMiMcled ,
wltlt writ oQivt oalj lij a leagu*. ThU I> Irac But wImii iImm alliod »OTaitt|iUL
MDTerttd th«ir loagoe into a gortnuoeal, irlicn IbtJ connrtMl iLtir CoiigraM of JLM- ,
lauador^ dqiul«cl to dcUb«nte on thai coimnon conctro* and (« Ttconunmd mMMna,
of gnwnl ntilitjr, into a Ugiaktnic impowcnd to tOiuit Uw* mi Iha laort inUnatiBS ,
aefajatt^ tha wtinln ehmet(r la wUch tlM Statci apfmr nndtiwcttt a change, tiM ex- \
lBiil«f wUchmuat bodttannlMd by a ftif es«uU«atian of tho iBrtnnwnt by whick
tkat shaaga waa dTecltd.'
(n) NowWn U Uta Indinolnbb dnr-
actnot tlx Foiml CaiMi own lordUy
praaanlad than ia the fblloaini; pauaigM
from (ho opjnioa of Cbier Jaitteo Cbmt,
inTnxa) v. VUU, 7 WaU. 731: "It »
■wdltp to dlaeiua at iMigth th* ^ucalioM
whathar itm right of a Stata to wltMnw
tnm tbr Union for any aaw«^ ngwiM I>y
hmttr a* RiiDdnit, i* cMMiatml with tba
OoBaUluUnQ of tlw (ToIImI SlaKa.
" na Union uf Uin ijtaica wai nsrer a
pattly utiAdal and aiUtrBry million. It
hcfpn among ttw oolanlt^ and grew oiot ol
eonaon erisia, tnubul iyapaiht«», ktn-
drad ptindplMb limtlar Inlanati, aod gvo-
gnptd«al rtilationa. It ma OHiAnnad and
ttTFui^icnrd by Iha MMMittioa it'wu,
and teceiTod de6ait< fom Bad ehaiacter
and aanetion (tam Uw AHmIm of OMded-
aratlon. By tkoM llie tTnion ma aolenuly
dadarad 1« ■ ba pffiMtual,' a»d whan tlMao
artii'Ira wfra fonjad to ba luaiWiwat* to Uw
exignwia of tho oouittty, tha ConMitiiiko
waa ordainod * to farm a mora pnfact
Unio*.' It la difflcdlt to tonttj tbr idoa
of indiaaolobla nnlty mora cleaily than by
tbtw worfa. H'Aot am la i»ditioliMe,
if « fnfOwU mim. wtadt mtr* ptrjtet,
" llot the pctpctnity and indiMotubiUty
256
COKSTtTITTlON OP TUB UKITED STATES. [BOOB lit.
§ &56. It is also historicatly^ knowa that one of the objecticMu
taken hy the oppon«iita of the Constitation was, " that it is not a
confederation of the States, but a ffoivmmetU of indivirfualB."'
It wax, nGv«rtJie1<!Sii, in the Holci^n iiuttrumentti of ratilication by
the people of the several State's, aasentod to, aa a Cotuititutimi.
The language of those iostrumonts uniform]}* ia, "We, Ac, do
> Th« FnlsnJiit, tfo. U, p. 247 ; Id Ko. 39, |>. 250.
or tko I'ttion by no mMm iiupli«a the
low of dutinct and Individud oxutenoe,
or of tha ri^ht of Mlf ■Ruvttmmcnt t? tlia
SUt«a. Unjer tb« ArtiulM of Co&fedtr-
atioD eacli Sule retniurtl itii nuVDni^iil]',
liMdom, and iiidi.'priidciii;c, auJ Errrf
power, JiiriuIictioD, uid right not ex*
pnatly <ld(^ud to tb* UiilUd Stale*.
Vadet tlio Cooititution, though tti* pXT'
«n of tho StaUa wtr« mticb TMtriotod,
ttiU all powon not (t*l«eit4>d I« the United
Statta nor pnhibiled to the Sutim, an
TCMrrcd to the $tat« n$pectivFl7 or to
the people, uid «o biTB sbciidy had octm-
■ion to nniRrk at thii ttrm, that 'the
pvople of cruch Stale compo** » Sut*, hav-
ta){ it] own gorennwnt, ajid niiknred
with all tho functioDa t«BMitiil to aepA-
nit« mid iiiiUpcndaDt oxiitcnoak' and that
'nitlwut th«Sla.ta« la antan tharaooald
ba no rack political bod^ at tho Uuitcd
Sutn.' County <4 Lose v. The State of
On^on, mfn, p. 7S-
" Not only, Ihoirfoni, can than be no
loH ot aeparate and iDdnpeudtDl aolonouijr
to (ho 8tala«v thTOOKh thcii nuioii under
tha ConatltDtkn, but it may be not nn-
naaonably laid Uiat tbf pnapiratJon of tlia
Statca and the in«ial«iiajior ol Uwirgov*
imniMti an a* mndi artthia the donga
tad cai« of (Im C«4utitatlon aa the piraa-
amtlon of lb* Unioii and iIm nulnta-
naoM of IhB atliuiiat gorvranionL Tho
ODiatitvtion, in all lb proriiiooa, Looka
ta an IwlaitnMtible tTnlon eompeMil of
ladtaUoetibU Stuaa.
•■ Wlim, thanferv. IVxaa becanwone of
the Unitod Staloa, the snland lata an in-
dlaaotnblo rotation : all the obligation* of
pcepftt*] lulOB and all the gnnotloa of
nfwbBcaii gpranniient la tha (7ldon at
onca attached to the Slat*. The aot «hkl)
connttDinatcil htf adtnlMon into the Dnini
n* *onicthing mon tha* a cooipoet; it wat
tlie iDTOr|w>nlion of • t>pir nieniW into
tin palitieal body. And it wa* final. The
niriou betwteu Teini and the other Statn
■ai a* complete, aa pcr]>rtiial, and an India*
aotuliio a* the union bvl»*«ii tha origlMl
Slato. There »aa no phicc for nOMmict»>
tioa or roroMtion. sxcFpt throng nroln-
tioa or throng CMiMnt of tho Statta.
" ConatdoMd, IharaToi*, a* HanaaolloM
nader tha ConitiluiiOD, the oidinano* ef
■ccoHioii, adopted hf the oovvcntion and
ntiitod by a OK^ority of the dtiieua of
T«za^ and all tk* acta «f hn L^Matma
Intended taf^reaOect to that odinaDeiv
wtR tbaalatdy nnll Thtif tr<M ntlariy
•ithaut opcntioD 1« Jiv. Tha obUggt-
tioiit of the tftato aa ■ membur of tha
Union, and of erery dtiant of tho State
•a a citiiKn of tbc Unlled States, ramaiiwd
parfict and nninipalred. It Mtlainly fol-
lows that the BlHla did not cew* to be a
State nor hor «iliasna to be cilinn* of
tho r&ioa. If thii wtra otbtfwiae, the
Stat* muat have Uooina fortjfiD, and hn
citinat fofvigMn. The war Ban*t hare
oeaitd to bo * war ten the aapfonaiwi of
a nballioo, and n>Mt hara beooaa a wu
tot ooncjneat and anliji^tlan.
" Oar conclgtiok, lliertfei*, b, tkat
TisM «anllnaHl to be a State, and a Stale
of the Union, botirfthalaadinic tha traaa*
Mlkot 10 tthtdl w* hl«* nfeind, and thii
ooMlnrfan, laonr jnilpnout,!* not laeoD-
Oict with any art or ilKlanlko of any de-
paitmint of the ualional gomwneni, but
entbfly in ocoonlanc* with the whok
(•Hm of (uch acta and dnIantioM •taoa
tb( Bnt outbtaU of the tvbelUon."
CQ. III.]
NATURE OP TUB CONSTITUTION.
357
oitent to and ratify the said Cotutitution." * The forms of tlio
convention of Massachosetta and Now Hampabire are aomewhot
pcculiur in their lunj^ugo. "Thf convention, Ac, acknowledg-
JQf;, with grateful hearts, the Rouduosa of th» Supreme Buler of
the imivcrac in affording the peuplu of Uic United States, in tho
course of hia providence, an opportunity, delilicratvlj: and peacc-
ahly, without force or surprise, of eutering into an exjiiicit and
aolemn cowptut with each other, by avunting Iq and rat^ymg
a new ConsiitutitiHf Ac, do assent to and ratify tho said Coq-
uStitution."' And althoagh many declarations of riglits, many
propositions of amendments, and many protestations of reserved
powers are to be found accompanying the ratifications of the ro-
rious conventions, sufliclently evincive of the extreme caution
and jealousy of those liodies, and of tJie people at lar^ it is re-
markable that there is nowhere to be found the alig:bteBt allusion
the instnunent as a confedcmtiou or compact of Stab-s in
air sovereif^ capacity, and no ruscnatiun of any right, on the
part of any State, to dissolve it« connection, or to abrogate its
ent, or to suspend the operations of tho Constitution, as to
'ItseU. On the coutraiy, that of Virginia, which speaks must
pointedly to the topic, merely decUros ** that the powers granted
under the Constitution, hein^ derivfd /rvm the peojAe of the
United States, may be resumud by then [nut by any one of tlie
States] whenever the same shall be penf«rt«d to their injury or
l>pret>«iun." *
§ S-OT. So that there Is very strong negative testimony against
the notion of it« being a compact or confederation, of the nature
of which we have spoken, founded upon the known liistor}* of the
tinti'j), and tlie ael^ of ratificntion, as well as upon the antecedent
Aj-ticles of Confederation. The latter purported on their face to
be a mere confederacy. The language of the third article was,
"TTie said States hereby severally enter into a firm leagtu of
frieiKbhip with each other for their common defence, kc, bind-
ing tlK'msclveii to ansist each other." And the ratification was
by delegates of the State legislatures, who solemnly plighted and
1 SwUMfarnutiitbtJounuaiar tlMCoai«ailoH,««., (181»,}i>p^ 890 t« 405.
* JownuU of Ibr ConvmUon, &«. <ISIf^) pf>. Wl, tOS, 41S.
* JaarnabArtbaOearaitian. li(i.,(lS19,) ^ US. Of the right of • nwjoritjr of tb«
ola pcofA* to <hn9S their Coa*t)l«tian nt will Ibcr* it no donU. Sm I Wiboa'*
41S : 1 Tneksr'a BiMk. Qoatm. IBS.
VOL. I. — 17
258
coNsrmmos of tbk ukitbo wtxTis. [book tn.
engafrcd tbo /aUh of tht-ir reBpective constitnenta, that thej* shoald
abide by the dctcrminutioa of the United States tn Cungip'eaB as-
ecmblvd on nil qucstiutis which, by tlio BnJd eoDtedi'raiion, ore
siibinUteil to tliom ; nnd tliat tlio articles thereof sbcald be invio-
lably obsorved by the States they reepectively represented. * (a)
$ 858. It ift not unworthy of obsen,-ation, tli»t in the debates
of the various convf^ntinns <»lled to examine and rntify the Coa-
fttttution thiH mibjeot did not pan without dixcuRsion. The op*
ponenta, on many otxaaionft, prctMiod the objection that it was ft
con»olidated govcmm«^nt, and contraated it with tli« oonfiKlera-
tion.* None of its adrocaten pretended to deny that tt« dtmign
was to cotabliah a national g(iremmi>nt aa contradiRtingaished
from a mere leapiio or treaty, howcror they mif^ht oppose the siig-
gestious that it waa a consolidation ot the Statra.' In the North
Carolina debates one of the members laid it down aa a funda-
mental prineiple of et'cr^' safe and frrc government, that "a rot-
emment is a compact between the rulem and the people." This
was most slrcnuonsly denied on the other sEde by gentlemen of ^
great eminence. They luitd, ''A coiniinct oannut be annulled,
but by the consent of both uarties. ThcnTfons uiilc«s the rulers
are guilty of oppression, the people, on the prineiplcs of a com- ^
pact, have no rigitt to new>modcl their government. Tliis is
held to bo the principle of s<jme monarohiul guvemmcnta in i
Euro|)C. Our government is founded on much nobler principles,
llio people are known with certainty to have originated it tliem--
selves. Those in power are their sen-ants and agents. And the
people, without their consent, may ncw<model the goveniment
whenever they think proper, not merely because it is oppressively .
> Aniciat of CoofMitntiMi, 17S1, »tU 13.
* I do not ujr that A» muuier ot iMiBg tiie «))j«rtion wm Jort, bat tha tmet *b<ni>
djintly kppian in thnprisUddrbkUa. For laMuMt In tlM TbsMa <Ubatu*, (SDUoI'a
Dull. 47,) Ut. Htnry will, "TiMt ttib U a couMlldaUd forvramMit i« ilamoiuAimUjr
cU*r." " Tht languagv C<*J ' Vr'c tb* (•ofK' ImUwI of * We, i^ SUUa.' ( Aoto an
the clunKterulici •»! •onl ofa oear«(lar«tioo. It tbc Slala be nol liie tgtmtM of Iliw
oomiKct, it mart tw otM grcal conwltdated Mtlanal gi>T«niiuent of tke feopUof all Ibo
6UlE^" TheUkDU|oic*tlaM«nlberamiJlanfliiu>plMMln Hr. KIllot'eDehatMfai
Othm Statta. Sm 1 Kllint'* DdIkIm. 91, DS, 110. Sot alxo 3 Aimr. MuamxD, «3S i
3 Admt. UuMUni, iV). it« ; Mr. Mattici't t^Ut, 4 RUIaI'* IbtutM, ^ ».
* 8 EUiot'a Itcbatn, lU. 3ST. »1 : The Ftdtnluri. Noc 3% 38, $0, It. IS ; SAomt.
UUMDin, 4S2, 4M.
(af Hw natioMl Tirw el (ke Comti-
tntiaa u fcrctbly pmnnlad l? DnUu.
U(t MKl WriUagi, by 0. U. IWlMk
100-107.
en. m.]
natvrb op tbb co»sTmnio!t.
259
exercised, but becMiso thtty think another form will be more
ctmducive to tiieir welfare."' **
§ SoO. Nor fihould it bo omitted, that in the most elaborate
expoaitionn of the Oonstitutiun b^ lla friends, tt« character, as a
permancut form of government, as a ftiiidameutul law, as a su-
preme rule, which no State was at liberty to disregard, suspend,
or snnul, waa coustaiitl}' admitted and iDxixtod on, as one of the
BtrunKi.-st n-iiaona why it ebould bo adopti-d in lieu of the confed-
eration.' It is matter of surprise, therefore, that a learned com-
mvntutor nhould huvo admitt<^'d the ripht of any State, or cA the
poupl« of liny Kt»t4!, witliuut the couiu'ut of the rest, to secede
from the Union at ila own pleasure.* The people of the United
StiiU-s have a ri^ht to abolish or alter the Constitution of the
Uniti.'d .Stales; bitt tliat the people of a single State ha^-u such A
right is a proposition requiring some reasoning beyond tlie sug-
gestioii that it ta implied in the princi|dos on which our pi)liti>
cai syntems are founded.* It seems, indeed, to have ita origin
in the notion of all governments being founded in ettmpaet, and
therefore liable to he diaaolred by the partie.t, or either ot them ;
a notion which it has been oar purpose to question, at least in
the sense to whlnh the objection applies.
§ SCO. To iw tbo doctrine of Mr. Dane appears far better
'founded, that "the Constitution of the United States is not a
Oompoct or contract agreed to by two or more parties, to be con-
stnied by each for ttaelf, and here to stop for the want of a com-
mon ariiiter to revise the construction of each party or State.
But that it ia, as the people have named and called it, truly a
Constitution; and they property said, *Wo, the people of the
United States, d<f ordain and establish this Coiistitutiou,' and
Dot we, the people of eaeh State."' And this exptMitiiui has
■ Mr. rredoll, S BlUcrt^ DaUin, M. « ; H- 900^ Mr. UcCtan, td. 20 ; Ut. 8pm-
m. Id. M, S7 : 14. I». Dm klw 3 Elliot'* D*l»i«), IH. 8m alv Cfeb&«liii «. Om^
SDalL lis. 8c«t1taia Ptan. DabatM, Mr. Wtltoa'a denitl tlwl Um OtnitltnUoB «a*
acomiwet; t Elliot'* DaUtM, 986, i$J. 8m kl» UcOnllodi v. Uujlami, i Whntoo,
■IS, 404.
* Tbo pMlaralbt, No. IS I* to, 30, Mt U i Nattli Aaxr. Rrrtow, Octatw, IStf,
* IU*|p M Uia ConHtDtloa. «lt. S2, |ip^ SW; «e, WT. >IM^ MB.
* Dm»'i App. H W, «0. pp. <P, 71,
* Ur. (iftprauiU Mr. Jottiae) Wilnn. wIm wm m mtmha at tha Men] Omvmi-
Um, nan, la tha PfUi^lnBla llAato. tb* bHMrtnn lU|i«Hp i " Wa wm* Ulil, Oc,
IhM Um oMTantliOM no doubt thoi^ltt tha; mr* brmlsf * ernifoet <r ooninet oC lh»
260
COXSTITUTIOS OF TOE UKITED STATHB. (^SOOK ttl.
beoa Bustained by opinions of 8oni« of our most eminent states-
men and judges.' It vm truly remarked b>- tbe FcderuUst,' that
tJie Constitution nas the result neither from the decision of a
majority of the |>eo[>le of the Uuiun, nor from that of a majority
of the States. It resulted from the unanimous asecut of the sev-
eral States that are parties to it, differing no otherwise from
their onlinary assent than its being expressed, not hy the legis-
lative authority, but by that of the people themselves.
$ 861. Rut if the Constitution could, in the sense to vhicb
Te have alluded, be deemed a compact, between whom is it to bo
deemed a compact? We have already seen that the learned
oommontator on Blackstone deems it a compact with several
aspects; and first between the StaU», (as contradistinguislied
from ^G people of the ^tstcH,) by which tlio several States have
bound themselTes to each other and to the Federal government*
The Virginia Resolutions of 1798 assert that "Virginia views
tJio powers of the Federal government aa resulting from the
compact to mhieh the Stateg are partiet." This declaration was,
at R>0 time, mutter of much debute and difforcuoo of opinion
among Ihu ablest rcprp»cntutivoa in the Lcfrisluture. But when
it was sobsequeutly expounded by Ur. Madison, in the celebrated
fnateat iwpatUoot^ It »h m»ttt<r oT iorjMiM to K« Uh gnat Inding ptindpJM Ot
UiB ty^trau ilill to my mach miiuiiilFntood. I miUMt nunn't (or "tut amy Mwbta
thought, but 1 bilif <re It «iQQoC br Mid thcf thou^t thtj ■Ktrt makiic « Mntnet,
bccMiw I cuinM duworer the kul trww of a otanfact is that (jxtna. nW« ooa U M
tompad, mbmOUrtart trurrt parluj Uuunmt. It !■ ■ Bnr doctrin*, tfcit «•* on Mtlia •
oomfiMt witbhiniBttlf- 'ThacuTivviitiun wnforKingcMitnotal' Withwhrait Ikiraw
no bwgun* that wure Uii>i« luadc, 1 ua luitUe to mmwir* who tb« putie* oonld be.
Thi! Sut* liortnimcDU maVt a batsiJa with owk Mht*. That b tbc doctrlks Aat la
■udMniKil to bv mtabllihnl by i^DllonMD la Ui« ofipodllan ; iMr Stat* tonMlpliM
wuh to be niirewDtnl. Bnt far othwr «en the Utaa of t\:r convMition. TJUt it Mt s
jtvmwnt foundtd vpon eompad. H itfvimitd ufvm tkt fomtr ^ tkt pa^U. They ex-
[XOM in their lumc and their otithoritf , <rv, tho peopla, do ordain uid ortablJJii,*' ke. 3
iniiot* Debatca, £80, SS7. HcaJdi, (I<t.XM,) "71it«*;it«n b nut aaamjiact ormn-
XrnfX, Th» iTaltiD IslU you what It b ; it b an «i4liianc« iiid o*lahlUbni«il of tlio
)X«|i1«." 9 DaM'aAbddg.oh.l87,*n. ^0i|15,P^SM. WO; Daao'a Ap^ (10, p. SI,
> Sw Wan t. Hylton. 3 D.H. 1» ; Oibhotm t. Omritb. 8 TML «t9 ; 1 Elliot > Dc
batea, T3 ; S Klliot'i Oehnta. il : WotaMr** Spacehai, p. 110 ; The Fodomltn. Soi. 8^
SS. 39 1 S Amor. Hnseun, !M, ttt ; Vlr|[inia DebmU*. b 17H, en tha Alion Lavi^
I>p. Ill, 138, 133, IM; Nortlt Amcfieaa Beiiav, OcUbM, ISaiMip. M7, Ut.
• No. 89.-
• 1 TuiPk. Bladi. Cama. 1«9 ; Bajnta'a SpoMli In Uw 8aDat^ te 1880 ; 4 BUM'*
DehatM, StS, Sie.
CH. m.]
NATURE OP TOB CONSnTDTION.
261
R«por4 of Jnnuary, 1800, after admitting that tho term "states"
U used in different scnac*, and among others that It somotimcs
nieaiw t]\« people composing a political society in their highest
sovereign capacity, ho considers the resolution imobjectionablc,
at tenst in this \a»t sense, because in that sense the Constitution
was submitted to tlio " States ; " in that acpiie tho " States " rati-
fied it; and in that sense the States are cnnse((nently iraities to
the compact from vhich the powers of the Federal government
result.* And that ia the sense in which be considers the Statee
parties in his later and more deliberate examinations.' (a)
5 862. This view of tho subject ia, however, wholly at vari-
ance with that on which we are commenting; and which, hai-ing
no foundation in tho words of the Constitution, is altofruther a
gratuitous assnroption, and therefore inadtni»)ible, Jt is no
more true that s Stat« ia a party to tho Constitotioh, oa such,
bccatiso it van franii-d by delegates chosen by the >Jtates, and
submitted by the K-gisliUtirejt thereof to the people of tho States
for ratification, and that the States are necessary agents to give
effect to some of its provisions, than thnt for the same rcMOOs
tho governor or Senate or Hoiisp of Reprfwentatives or judges,
cither of a State or tho United States, are parties thereto. No
State, as such, that is, the body politic, an it was actnally onnin-
iud, had any power to enter into a contract for the establislimcnt
of any new government over the people thereof, or to delegate
the powers of government in whole or in part to any other sover-
eignty. The State governments were framed by the people to
administer the State constitutions, such as they were, and not to
transfer the administration thereof to any other persons or sov-
ereignty. They bad no authority to enter into any compact or
contract for such a purpose. It ia nowhere given or implied in
the State conHtitutions ; and consequently, if aetually entered
into, (aa it was not,) would have had no obligatory force The
people, and the people only, in their original sovereign capacity,
had a right to change their form of government, to enter into a
compact, and to transfer any sovereigntj- to the national govem-
n)eDL*{/>) And the States never, in fact, did in their political
■ BcMtntkn* oT 1900, pji. S. C
* Kotih Aneriou Bdriew. Oct. 1830, pp. U7. Mt. • 4 Whmbim, tOi.
(fl) Writlnfi of MklboB, IV. M, S9S.
cnM*d by th* pMfla aad boUIng fran
ihm Mtttb MtgkUd pomn b (nut.
262
coxsnrtTnoit op thb dniisd nATEs. [book m.
capaeitjr, as cootradistiDguinhed fma the people thereof, ratify
Uio Cutuititutfon. They were nut vailed upou to do it by Coa-
i^M, and were not contemplated a» iiMentlal to give validity
toiL>
■ The Foltnlut. No> St. In ocoflnutloD of tH» *(r«, «a B>r quote tlw nuottlag
of llta SapNtM Court in the cue of McCanocb r. Maryliod, (( Wli(atoa'>K3ie,) U
Niiiwnr to the nry ugonwit. ' ' The powen of t&i> gianl gDremntent, it bM W*
Mid. M* dib^tol lir tiM SutM, wbo kloue nn tntlf laremgn, and uuut be eloKMd
itt aubordliulion to th* States wlw »1od« immbm Jiuprienie dominion.
"It ooulil Iw difficult to n»t>ia thb pn^Mltlan. Tit coiinatloii iriilcit fNimd th«
ConatitutioN WM indMd dMted bf tlw Stste logisUtuni. But Ik* inidniMH, wh«a
U amt from thttr h*nl|l^ wu n ■»!• pnipoo^ withonl obU^itiaa or fntenanMu to iL
It WM npoitnl to th* tliNt nUting Coiig7<v a( the Uiiit«d 8t«tM with ■ miuort thtt
K might b« (ubniitted to » (nnventim of iM(f*t<Ht clw**>> fa •■■'h Si^to t^ tho pM|J*
wbiob llMy alONurd lin th« SUlet arrvt^
all;, M io«uibcn of > coafodency, bad no
nuthoritjr undor their tlr1r)(Hlion la wt
Mill* 111* o«ill(d<tmtioii, imrugureto ■ rer>
olutton, uA Instjtut* a new and mora
*n«Ke1iD gvnraawiit by wLlch tiio fttata*
tli«7 npcnento^ at ^(raciM w*aU b«
•bom of aunj noM Impoitant ponnv
and mtilKtwl, l*gitl>*r villi thrir feople,
to nuiF ntualnt* aukkon Wfcr*. B«t>-
olntiona unlit oilyinaU wUli, *tid fca tt-
IkImI bj, tbc people ; rxiitiug govtre-
IMata bam only to «on£na ibtsnolvn to
a (hllhhl enoulion of Ihr Ituata rooSdMl
to UiMu i awl if tb* janoM in *«t)ia«tj
gi hvjonA tki* Uuut and tnk* itcia to Hi
add* tba lutnimanl of gomiiMiUt und«r
*li(ek alon* thajr h*T* tba right to ivpre-
•Mttho ptqpb^ tbermayjnaiirytlidrto*-
duet, ptfliap^ ■■ indiiiluiK If ivTitlnl^
ahalt fca acronqdithtd ami |irov* faanaltcial i
bui It k« an abuM of Utmt to *pi«k U
thoir act ■« that of tb* gnnanax*! of
which (bay wvm nmiliti^ «hc« in truth
it ia aonirthing *o Ur ban bting cwtan-
platfd by, ihx II UaetuaDy r>t«pMBt le^
tb« dtlaptioa of authority, and ibtnfer^
IndMd of haikg wilbja lb* tnMt mm.
fmvd. la nirnMiOy nbritair* «( ^
llr. BnohwMa ^iptan t* hava kllm
into thii •cmr whan ha aMuaad, (n ISM,
Ihat to |art fcnh Iba pown of lb* p>T(fa.
■Mt te nlalw lb* hm^ anaiab, and alW
, inifartj' ol tb* Vniui Stttan, and to an-
foKo the pwrfonnana* of UJUiwial dutkt
witbui «ae of Uw Stataa, th« ncanhara of
whota Icg^atire and eieivtirc dcfart*
■nmta had bj ronnal acta and dattatallCM
anDOUMwd lla «ilhdia«al tnm tha Uaioih
WMdd bo to wima wari^diat neb Sntai
8aa ku nuaa^ of DcotBbar 4, 1880, uid
hi* «x|>Uaatinn thnaof in his aocooat «(
hi* adninbttatioM, uh. t.
Tb* pow«* "to ooaroa a Stata" wai
that wblcdi Mr. Bucbaaak «aa aolkitoa*
not to tecugttiie. "Sot (or all tb* land of
the mntiMntcf North America would I
agr** that tba Fadctal canmnmit bad
l»wnlaaaaeM*8Ml*b"aaid Hr. Sanaur
JsOataoB Dart*, in addrwihig hi* otautitn-
enia nt MMwipfa «« the adndMoa of
KauM*. To tUi OonfiMT Vfa* of Tlr-
(lui* ivplM: "Thi* Nraly ounot U
MMUt in BB ahnlnto mam, elthtr that a
Stale caniiDt be ooaned, or that la aoin*
ct«a *b« ounbt not to h» co*nnL If a*,
aniacanba put in which I jaiwiiiii iiiiij
patriot ovght to be willing to gin the
price of all tbawwda h»^al tba ooMi-
Mtwt, if aawwwy. to cowoa bat." Oc, m
tba ooMlast abowa hit maalng to h^ to
coMpd lb* pMaeot in awUiDrity, a* wall
aa iha f«ph «( the State n fCMtuI, t*
anboittOMich lawaof Ooofnaaait baling
bar—'* topwanaaiMorthaConatitU'
tla^han baaomaflU twy»— ■h^flT'**
tawL trial iiiiTMillaiM fl iimiI imI
thaAdaiMm*fSw^pi.loa. C
OH. m.]
NATDBB OP TBS C0K3T1TOTI<H>.
888
§ 363. The doctriae, Uien, thnt the Htalcs aro jiarties Is a
grutuituiu uMumptiou. In tiie language of a most (liHtiDKuislied
ftUtvtiiuuii,'(<i) "the CoQstJtutioQ itoeLf in ita vcrj* Irout refutes
tlirrunr, andrr tho ni«imiiicndntii]n of tt* leguI*l«R^ Gtf thiat laMit ami ntUcatlaai
Tltlx iiioilv of pnxMi'iiinK wu adopUiil ; «nd bjr Ac ecavutlea, Iqp CODgriM, toA hj tha
HUM IrgUlntiiiii*, tbii bi»tnim«uC «*» uibmliW (o Uw paofh- Thrj *rtMl upon it in
UmohI}' iiianiiM in wlilcL thrf csu »cl sttolj, «ir«clitely,aBd aiaclj-, oia nich tntjtett
bjr aucmUing in coDVPiiIiou. It U tnw, thejr uMmUnl in tbdi KVanl fttaUa, — and
where clw dioiilJ tliejr hive auomblnl I Ko polilicnl 4rraincr wa* fT«r wild eiioagh (0
think o/ tiTMklnK iloim Uid llnoi which acpsmta tha Klateit, &nd of rampouiidiiig ths
AmaricaB jwuiilo iub> miv oomniuii tiiaw. Uf cuiiH»|iii<iice, wticn Ibry act, (br; act in
Uuir &ta.taa. Bat Dm tnaaanrM liiry nduiit do not, on that Mcouni, ccue to W the
moaMKaof (he paopl« thnudTM, ot boconiv tho inauurwtof lliu tttalti govmmt*it».
" PtQin then coiiTcntioiii Iha OotMtitution di*riT«a ft* whole autliuritjr. Tfa* govmu
mmil {iraowdii lUnutly trma tha ptoptc ; It ' oTdiioed and Mtabliikcd ' in the nauM «f
tha pcoiite ; aud la (declared to lie onUincil, * in OTtJcnr ta htn « mare perfect tluon,
fatiHiah jnalio*, iniure doniMtic tranijuillity, am) Nieui* tha blcaiingi of Ubarty M
thamwlm anil tothiirpnaturlly.' TlieuKnt oftheSlatea, la their WT«t*ipioap«citTi
I* ItnplUd lo <*I1iag a ooiiT«iiIiuii, nnj tbui lubmitting tliat [lUtniiiiBDt to the people.
Bnl the paopk were at jierfrvt Ubcrt; to ac«^ or i^nt it, and thelract wu finaL tt
nfaired not the afflrmuicc, and roiitd nnt bn mffMfti hj tho Statu gartrmuina,
Hm Coiitlinitioii, whi^D tho* adoptod, wm of tomplat* oUifaticoi, and boa«d tba 8uU
*' It ha» been aaid thnt the people hid already rairendwed all Ihelf powert to Uw
Slat* wnrelipiti.-i, and hwl nr.lhinK inur" to xird. Bot, Hardy, the ^UMlloo wbMlicr J
t^ Bay tiwunie (ii'l mo'tiry Uic powi'nt gnni'sl U> iin*«mini<Dl d«w not ImmIb M b4^
MttUd ia thii wuatry. Much mon: migiit the Irgitiinai-y of tha pmfl gormtmn/tA
ha dMbled, had it beon cnatod hy the Sulo*. The powen ddegatol lo the 9laU '
wnrdjpttia war* to ba asarclaad by themwjnga, not bjr * dii^net and bdep«nikaA
aonndgnty ttaaUd by themaehva. To th* formatiaa •( • l«^B*v *nch ai waa tba mo* I
Mmtko, tha Stata aoraraignUaaware orrtainlj oavyatsnl. But whan, 'In order tti
form a nwta ptiieat mlon,' it m daoMd nioaiiy t* cbai^ lUa aUiaoca bato i
tSccliTa cevwmMdt, yiwiiilnit |7«M and tovoreifn powtai^ anil acting diractty on A*
ftfU, tha nawmlty of rvr«rrln« it to tbe ptnpla, and of dctiTtng ita powen dirwtly
ftan thorn, wai Celt and acknowlodged by alL
"The ganranwnt of the Cnkm. Ib«ii, (whaUnr mqr be the inllitinta ot ihU bd
on lh« caxv) b emphatically and tnily a govemiiient of the peoiilp. In fonu and ■nb>
tfMw* U MMMtaa Avm thMM. iHpMNcaangnuitad bythem, and are tobaamclipdi
dlnctly «■ tham and for iMr hmOL
"llda g»nmnient i* a(kiwwleds»d by all Isba oaa ot rninniaralad [lowan. Tlw
friawpta that it mn smeiM amly tba ponnan gimtad to it waoUl acoai too apfMcnt t» •
ha^ n^nind to ba eafbtctd bf ill thaaa wfOMtati whidi Ua anlightenad frianih, wbita j
It wa* d«p«idh)g brfor* tba (Mpb, (oDttd It nirt— ry ta mge. Tbat piindpla b Botf |
niTinally adwUtad. But the luaatlon napKttng tha asnanl ot (h* powan aetoallf
gmtad U pnpataally ahiing. and will probably omtiana to aria* aa long aaonr tjf
t«M ahaU axlrt."
) WcUur-i SpmkMk lUO, p. tSi 1 4 ElUot'i DtUtea, SiU.
(a} S WctMtec'a Worka. SM. See ab» Id. ttO H mt.
264
CONSTITUTION OP IBB DStTED BTATES. [iWOK III.
that It declares that it ia ordained and established by tie
PEOPLB <if the Uniud StaUt. 8o far from aaying that it ia
cstablUhed by thu governments <d the several States, it does not
(;\X'n say that it is established 6y the people of the several iStaU*.
Bat it prooouaccs that it is established by the people of the
United States in Uie aggre^te. Doubtless the people of the
several 8tAt«a, taken collectively, constitato the people of the
United States. But it is in this their collective capacity, it is
as all the people of the United States, that they establish the
Constitution."'
3 864. But if it were admitted that the Constitution is a com-
pact between the States, "the inferenees deduced from it," as
has been justly observed by the same statesman,^ " uro warranted
by no just reason. Beesuse, if the Constitution be a compact
between the States, still that Constitution or that compact has
established a goremment u-ith certain powers ; and whether it be
one of UiDse powers, that it shall construe and iut<.'rpr«t lor itself
the terms of the compact in doubtful cases, can only bo decided
by looking to the compaet, and inquiring what provisions it con-
tains on Uiat point. Wilhout any incoasistcnuy with natural
reason, the government even thns created mi^ht be trusted with
this power of conatruetion. Tlio extent of its powi-ra must,
therefore, bo sought in the inatniraent itself." "If the Consti-
tution were the mere creation of the State goromments, it might
he modified, interpreted, or coiiHtroed according to their pleas-
ure. But even in that case it would bo necessary that they should
agree. One alone could not interpret it exclusirely. One alone
could not construe it. Ono alune could not modify it." "If all
the States are parties to it, ono alone can havo no right to 0x_
upoti it her own peculiar construction."' {
1 Mr. D*o« nMocu l» tb* nnw tAd, t1i«a^ It b oMom tlul he omU not at tlw
tiau Imt* bad taj kuowMge «f tlw vimn of Ur. W«birt«r. » Duw'n AMdit. A. JSB,
,ait.90, flfi. pp.M»;aX}; DmftApf. 40^41,41. Batddi, "Ha oonlnd, «btn
■ad h>>w did tho Unioa tewaptrty toltt If «oeniiMt,«hf t* It nerrr >o il«noan.
IbUkI, bat often anil InnutaU; In the iBatraiwnl ItMJC and in ita ■mmdmi-iiti. ilyled
'Mt ConatltDtkn ' r and U a cootnct, wli]r did tlie franwn and ftofie «all it tlic
ni|awM U« T S Dutf's Abridg. MO. Im Hartin 9. ftantar. (I Wkat. R. SO*. iH,\
tha SupROie Coun vspmalj daoland that *lk* OoMtltntlM wu onlabnl and «atalh
lUiad.' not hf the State* In their tomnif^ otfaidtj, bat Mn|iWiMll7. ■• tha fawmUs
«r the Comititution dadaiw^ ■ b; Um paopU «f lbs United Staha.*"
• Wetetar'a Speachoa. 420 ; 4 Elllnt'* nebatM. »4.
* EtvD ander tha toaMaratloD. vhhh ma toafaiaadly in mmj napecta a m*n
CH. III.]
(JATUBB or THE COXSTIIVTION.
$ 8<U). Then U it & compact between the people of the B«v«ra1
Stated, each contracting with all the people of the other States ? ^
It may be admitted, na wmi the early exjKtaition of its advocates,
"that the Constitutiott is foundud on the afiaent and ratification
of the people uf America, given bj- di-putics elected for the spe-
cial purpose ; but that this luiscnt luid ratification is to be ^ven
by the whole people, not as iiidividuaU composing one entire
nation, but ax eoui)>o8iiitf the di^tiuct a»d iudependctit States, to
which thcjr rexgwctirely belong. It is to be the nssent and ratiS-
cation of th« «evernl Htate^. derived from the supreme uuthurity
in each State, tlie authority of the people themselves. The act,
therefore, cstablislnng the Constitution, will not be [is not to
be] a notional, but a federal act"* "It may also be admitted,"
in the language of one of its most enlightened commentators,
that " it woa formod, not by the governments of the component
States, aa the Federal go^'emmcnt, for which it was subittituted,
VftS formed. Nor was it formed by a majority of the people of
the United States, as a single commnnity, in the manner of a
conaolidated government It wan formed by the States, that is,
by the people in each of the States, acting in their highest sov-
ereign capacity ; and formed consequently by the same authority
which formed the State constitutions."^ But this would not
necessarily draw after it the conclusion that it was to be «leemed
ft oompact, (in the sense to which we have so often alluded,) by
which each Stat« was still, after the ratification, to act upon it>
as a Ic^iic or treaty, and to withdraw from it at pleaAurc. A
gOTemmcnt may originate in the voluntary compact or asficnt of
Ingot or ttwtf. tbaugb in oUin Ksperts ntUiHMl, Ooagrm VMUriaiontly raMtmd th*l
it WM DotnitUn the oompetmcy of my Slate to fm acta tot li>t«r|<miiig, rx|<Uii!u^
or eoMtrniiif * aatioiul ttMtjr, or wty part or (Imu> of tt Vet Id tint lualnuDBnt
lbM«*Mn4t<xtirMiJi*ileUI]>MrorglT«Q totk«|iCDin«]gaf(niiMiit tocoMtrneiL It
ma, hometa, ilmnad an in-«ibtible Mid «»]iutn ntbotUr fa tlu (Mini fntammit,
(rantlMvccyiwtiiTCor thr othn powcm gfnn tq th«a ; tnd MprtUly fran lb« pomf
to dmIm mr uul pMce, uid to farm tn>ti«s. Joofiwb of Caiig;t«ia, Apil Iti, 1787,
pp. n, Ac ; Rawb on CoMt. A{ip. % pp. 31A, 830.
I la lb* r«Ml«UoM patoocl ij tha Senate ef Scnttb CwolUw, b Dtembrr, ISn, !t
«M d«cl>»d that " ibe OaiutitBlioa of th« t^nltad Stat** it ■ compoct MvMn tbe
p«ofle at the djflbrcnt StalM witli each other, u eifviato asd iodeptodent MTmign*
Hm." Mr. Oiimkf filed a protnt foandtdoQ diSermt rkwi of H. floe OrinLk^'* Ad-
4rMi a»d BcMlntioD* In 1338, (edidaix jfnt, at Chnlatoa,) vfan* hi* axpttritlea «l
tba nmMftuUon b gi*m at krB*> '^ maintained In a t«tr abk ipaith.
* The Fcdrrttbt, Kn. 3d ; w« Stntfb «. CrawnbikleU, I "VFbMt. R. 193. 199.
• Ut. MndUoa't Letter la Karth Amerfaan Bericv, October, 1880, pp^ 687, S88L
CDNmrtmoN or tsb unitbd states. [booe m.
the people of several States, or of a people never before united,
and yet when adopted and ratified hy tbcm be no longer » nutter
rcstinR in compact, but bcciunc an osonitwl Kovcmmcnt or con-
stitution, a fundunontal law, and not a mere IcuK^c. But tfao
difficulty in asticrting it to be a compact between the people of
cftob .Stat« and all the people of the other States is, that tlie Con-
stitution iUeU contains no such ctpression, and no such desig-
nation of parties.' Wc, '^the people of the United States, Ac,
do imlain nad e»tal4i»h this Vonttitutiirti," is the language; and
not we, the people of each State, do establish tliia compact be-
tweeit ourselves and the people of all the other States. We are
obliged to depart from the words c^ the instrument to sustain
the other interpretation; nn interpretation which con serve no
better purpose than to confitse the mind in relation to a subject
otherwise clear. It ia for this reastm that we nhould prefer an
adherence to the words of the Constitution, and to the judicial
exijusition of these words according to their plain and common
import*
■ S« Dinc'i Afp. IS 32, 33. pp. (1, 41, 41
■ ClUbobn (L Oeotjp*, 2 D«]l. 410; Martin r. ITantw, 1 VhMt. R. 3M, tU;
DmtTa App. pp. SS, 24, S9. 30,. >7, 3^ M. 41, -IS. 43, 51.
Tbi* lubject it oonidHtd with nuMli oh* 67 PnsuiMt Uannx^ ia liia K»po«Ha»
aca>in[uui]ing hit MMMfa «t tlw 4tb •( Haf, 1S32. It b das to iua auinocj to
iiurti tin rallmring pnagn, wldcli csUbiti hU noUon of th« aafnumej of tlu
ITnion : —
" The CwrtttnHwi of the United SlaAm. lmi« atiStt by tbc fetijla of tb* M*wal
SutM, bcoMiMv ^ BMxMtj, U) tb« mtmt ot itt powtn, Um pHMOMiit aalliarily of
Um Uniuc. On •oond priaeipla it cu ba vlrwiod In no otber lixbt. The jwofhv tlia
blgbeat BBtboKtr knovn to our i<7*tnn, (rocn utiwn all oar InMltiiUoDS «pring^ and oa
vliaia tliojr depend, l«niiad IL Had liio paopU «f tbe miy*rtl 8tal«« ibooghl prapw
to Incorpoimto tlwniaelTes iato otio cnmowaity wtdn oae s°v«niaM«t, tliBy nrii^t ban
doiw lu T)mj bod tbc pa««r, and tbtra waa nothing tben, net ia there anj^tng nam,
abeabl Hmj b* a» diipiaai, to fMvoiU it nay wiad; itapfid, hovavw, U a «Mtala
]wiai,aiMidiBgtlMineofpai«UaBl«th*tpoiBt, maklagthaaaltonatywanftlfcoa
6u ■ MauotiiUud goranuDoit, Md prwattiog the Btata goviiniB«at% without that
BoM^ ptafeetlj aaTtnigii and iadapendant «t tha aational goraiamant. Had tbo
poopio «f tl>« aoTDTal Statca iaeorpMatod IhcmalTaa Ibio om eonmanitj', tby ninat
ka«B Knaiatd aoch; tkcit eooaUtBtioB btntaing than, Uko tka cMutknUan of tba
aawnt Stately iMafi^ of «hanfa utU altwod faf llw «IU ot tbo nia>ority. b tb*
fairtitiHiwi «t a Stata p>T«ramant by Iba dUiwii i4 a Stal^ a ooaipact m lonaad to
which all and vmj «atian ata tqoal partioik Thqr an al*o tha a«b paitita, and nagr
aniaud It at pl«mn. In tlM inrtitntion of thd gwamnwnt of tb* tJnitaJ Siataa faj
tba dtbani of cnrr Stat^ a «a»paet waa fotMol brtWMB tb* whob Amerieaii [•■opW
wbioli ba> Iba (anui fom, iMd pattakaa of all tha (loiUlln^ to the««rat«f ttapoitvo^
a* a eompact batwom iho dtttuw of a Staio la tU fennaUon of tUalr own ocaaJftap
ca. in.]
HATCB£ or THE OOXSTtTtTIO}!.
26T
§ 866. Bat supposing that it w«re to be deeni«d nach b com-
pact amoDK the people uf the several States, let us see what the
enlightened alatcsman, who viuilicates that opinion, holds as the
aplimpriate deduction £roiu it. " B«ioi; thus dorircd [says he]
I'Irom tlie same source as the constitutions of the States, it has
rithin each State the same autliority lu tlic constitution of the
State; and is as mueh a constitution within the strict sense of
Iho term, within its prt*ji<:ribed splien', as the constitutiuos uf the
States an; within their respective spheres. But with thiaobTioug
and ewentinl difTcrence, tliat, being a compact among the States
in their highest aoTcreign capacity, and eonatitvtimg the ptapU
thtreof «tw ptoplt f«T certain purposes, it cannot be altered or
annulled at the will of thn Statm individually, as the coDstitntioQ
of a State may be at its individual wilL" *
tim. It cannot b* *ll«r«d, *xMpt br thoM w1m> Tonnol it, «r In th* rnoda pcaacribad
bjr tli« partfm to the conijNrt itwl£
■Thii Cttoatitwtioa wMailopt»i Torllie purpoMof mnedjingall tba drfeet* ef Iba
Bbdtniliaa; and in tlu* it b»i aiMecded brjond any aJcalotion thtt oouU kam
I tncn fomuil ol anj hanun intCitaCian. By blDilin^ tlio Stata togctbcr, Um CoiiMitq-
) ttco iwrfonua tlin ftivitt odto* of tlia DonfMlmtlon, but it U bt tlist mum obIj' that it
I'hm urf of tb« fir«i]i«irti(« or that comfaot, and in thai it b mors FiTwtnal to 6u par*
, at it bolila them togttlisr bjr a nueli alwmgar tMud, and In oU otbv rafiaeta, fai
[wUch llw oonfadrnitiaD Culod, th* Cooatltittlan baa Wa UimmI wllb complala
Tha «oi>fnl(it»tlan mat a oomfoet twImMi Mivinla tod ind«p«n4«fit StatM[
) eMontion of wImm arllcln, in the jmovn whidi openlfil intrm&Ity, dcprnJcHl oa
I State gonmmtmU. But the giMt officn of the Cosititation by incorponting tha
lljaople oT the afvofal Slain, to Hia extant <d ita pMror^ (ato Mia Mmnranitj, and
•naUiafi it to act dinctJy on tfaa paoplo, «aa to anual th* fomm of tha State govem-
aienta to that extant, eiorjit is team wh«n tWy wen voucarnnt, end tu pmOude
Ihdr agciu^y in gmmg (fleet to thoae of the genml goremment Tbe gavvnunaal of
the United Slate* nlici on Ua own narana for tha exacutton at it* power*, aa Ilie Stat*
farttanwiila do lor tha execution of tbtiia; both goi<ttiinunlt having a conuB«a oijfta
fM aoirocrig^ IIm fwople, — the SUU gftntamtmU, tb* prnpla ef each Stato; iho a»-
tiooil goverwnitnt, the paojila of amy Sule, —and Mmg OMeaaUa U tha pom
■Uoh cnattd it. It i« by cxeouttng ita hioclioiit as a govmnont, ihn* originatiiig
Ltad tkna aclii^ that the CoMtilation of tb* L'Mted State* bolda the Suiw t^pithaf.
Land pecfiinaa tha cdcn of a k^aa. It ia owiag to the aatsn of ita powcn and tha
[^higfc eewCT tnm wbata IJHry are dtriToJ, the people that it pnfbnM that oOoebiltar
^thaa the confadNatiiM oc any iMgn* wiikfa »m aiiuad, Maf a eoupact, ■Uoh tha
I noTtmncDla did not forv, to which tlwiy are aot partiM^ and which exeeiitci ita
'vn powen Inilcpoiidcatly «f tbaa."
I Ur. Uadltoa'e l.aIUr. Korlh American Reriew, (klobor, 1830, p. &t3. Ur. PU-
(non (afUmrde Mr. Juetice PaUnoo), ia the oonraation which fnmod the Coutito.
-tion, bdd tb*> dooliise tkal, ludar tbecoiifadontion, woSutr had a r^t to wilLdraw
^>faMa the UnlD« wjthont tbe oouent of alL "Theoonfoltration (aaUho] ia la the
) natnn d a compact; and oan any Stat^ ualcaa by the oonitat «f the vhole, either fai
268
OOXSTITOnOS OP THR
rATES. [book m.
{ 867. The other branch of the pro]>DAition we hare been con-
sidcrio^ ia, that it ia not only a compact between tho svvcral
Slates and the people thenMif, but also a compact bctwcca the
States aad the fedtral j»i'«TtnMntt ; and t convtrto between the
ftdend government and the several States and ever}' citizen of
the United States.' This seems to be a doetriiic far more in-
Tolred and extraordinan' and incumprchensible than any part of
the preecding. The diflieultica liave not escaped the obsen'ation
of thotic by whom it has becu advanced. "Although [says the
learned commentator] the federal government can, in no pottibU
view, 1)6 considered as a party to a compact made anterior to its
existence, j-ct, as the creature of that comjiaet, it must be bound
by it to its creators, the several Sutcs in the Union and the citi-
rens thereof. " * If by this no more were meant than to state that
the federal government cannot tawfnlly exercise any powers ex-
cept those conferred on it by the Consti tuition, ita truth could
not admit of dispute. Hut it is plain that something more was
in the author's mind. At the same time that he admila that the
fodi-rul povcrnraent could not be a party to the oompaPt of the
Cuiulilution "in any possible view," he still seems to iosiHt
upon it as a compact by which the federal government is bound
to the several States and to every eitiien; that is, that tt haa
entered into a contract with them for tho due execution of its
duties,
% 368. And a doctrine of a like nature, namely that the fed-
eral goi-cnunent ia a party to the compact, seems to have been
gravely entertained on other solemn oceasionji.^ The difficulty of
polillci or law, wiUiilnw their pCMm t Let H be nid bjr Pcnnsjrlruib and the otluT
lujia .Sut««, lliat lh*f Ua Uie nkc of |)Moe mmmIbI to tbe Mnrfdontjun: tun (be now
muina her original right wilbont tlio tCMrnt of Iho doiMa''t YaU*** Drhain, 4
Uliot'a IMaM*, TSi. Hr. Dans nMitnlvocallr hoUi t^ won langni^ In raapwl to
iha Ocoutf radon. '■ It U cImlt {my» h«} tiN p«opU at taj «( ittau alona novrr nta
takn oc willulrav pow>r TroM lb* Uniwd SlaUa, whioh magnintnl to It brall.aa Uib
people td all Um Stiles o*n do rigbtMl; in • jnMUklile icTnlution, or at tha peo(4«
can do ia th« fflanntr tbrir ConMitaliM prcKnba." Ikar'* Xpp. 1 10, p. VI.
Tha Mdinance of ITST, for tbe (SOVrnuDtnt ot lb* NonliitMaiii inrrltorr, omtalns
(u we bire Mtn) tertaln artlclM iloeUifd to U "acliclxt of nun^KKf ;" but (tnj itn>
aito doeUred to 'ronaln tonvtt uaallerBUe, exMfit hr eamntm anuntl." So ihit
then maf ht a comfaci, and y«t bjr the Btipnktiana Dtithpf puty taaj ba at Ubm; to
«flli<In« h«ni it. or abKlTe lUelf ttntn iU oUiptianiL Act*, jk S3&.
> 1 Tacker'i Black. Coonn. ItM, HO. * I TMkir'n Blnck. Comm. 170.
• Dobaitt ia the Seaate, b 1S30, on Hr. Tooft motntloo, i Elluit'* Dabalte, 31S
to»l.
CB. in.]
KATCntE OF TUB CX)KSTtTtrnO)>.
a6»
mftintainiag it, howcrcc, aeeaia absolutely inaupcnbte. Tlie
(cdcrnl govcnuucnt i» tlie result of the Constitution, or (if the
phrase is deemed by any jjcrfton more a[i)>ro))riatc) the creature
of the compact. How, then, can it be a party to that compact
to which it owes its ovn existence ? * How can it be said that it
has entered itito a contract, when at the time it had no capacity to
contract, and was not even in «« f U any provision was made
for the genera! gorernmeut's becoming « party and entering into
n compact after it was brought into existence, where is that pro-
vision to be found ? It is not to bo found in the Constitution it-
self. Are we at liberty to imply such a provision, attaching to
no power given in the Conatitulion ? This would be to push tho
doctrine of implication to an extent truly alarming; to draw ia-
fcronci.'«, not from what is, but from what is not stated in the
lostnimeut But if any such implication could exiat, when did
the genural government signify its assent to ttccomc such a party ?
Whim did the (wople autborixc it to do so?' Could the govern-
ment do BO without the express authority of the pooplo ? These
an- qui-stions which are more easily aski'd Ibun anawered.
§ 3'39. In short, thi; dillicultiL-s attendant upon all the various
theories under consideration, which treat the Constitution of tho
United ^tutca as a compact, either between the aeveral States, or
between tho people of the 8e\xra] States, or between the whole
people of the United States and tho people of tho several
State*, or between each citizen of all the States and all oUier
citixcns, arc, if not abuolutoly insuperable, so serious, and
so wholly founded upon mere implication, that it is matter
of surprise that they should have been so extensively adopted
and so zealously propagated. Tliese theories, too, seem mainly
urged with a view tn draw conclusions which are at war with
the known powers and reasonable objects of tho Constitution;
and which, if successful, would reduce the goromment to a mere
confederation. They are objectionable, then, in every way:
firet, because they are not justiGed by the language of the Con-
stitution; secondly, because thoy have a tendency to impair, and
indeed to destroy, its express powers and objects; and, thirdly,
because they involve consequences which, at the will of a siuglo
State, may overthrow the Constitution itself. One of tho fnn*
> Wtt>t«r'« 9pe«chi», «29; I EUkif* XMMta, Z2t.
* Omu'iAi^ J 32, P- 41; I J- I U, p. M.
270
coNemrcnoK op toe cnited states. [book m.
damental rules in the expoeition of every JD«trum«Dt ift, ao to
OODHtnio ita terms, if pofmible, aa nut to make them the source of
their owrn dcMtructiuii or to mukv Ihcm utterly voiil an<i nugatory.
And if this be gvnerully true, with how much more force does
th« nilo apply to a coustitution of governmeut framed for the
general good and dc8ign«l for perpetuity * Surely, if aay impli-
cations ore to be mnde beyond its terms, they are impticaticMis
to preoerve, and not to destroy it.>
S 870. Tlie cardinal concluition for whieh this doctrine of &
compaet has bct^n, witli so much ingenuity and ability, forced
into the langiioge of the Constitution (for the language nowhere •
alludes to it), is avowedly to catabliah that, in construing the
Constitution, there ia no common um]Hrc ; but that each ^tate, '
nay, each department of the government of each State, ii» the
supreme judge for itself of the powers and riglits and duttea
arising under that instrument.' Thus, it hua been solemnly*
asserted on more than one oocamon, by some of the State legis-
latures, that tJiere is no common arbiter or tribunal authorized ti>
decide in the last resort ui>on the powers and the interpretation
of the Constitution. And the doctrine has been rcoentJy revircMl
with extraordinary seal and vindicated with uncommon rigw.'
> The Mlowloji Mmg Unguags ta ulniciad rrenn lutnKtioiu givn to uum repf^
aMitHtivoH of lJi« Suir of Yirgiiiia hj ihtii ooutitatnto in 17ST, with prfstOM to Uin
ocnfedentioa : " Got-tramout without «ockm« 1* • propoiitioii *t ones m ahHud md
atlf<«Mttsdictory OM Uta ide* cnaua a cofirdi4om of th« >n4M*tUiillli|^ It t* turn
wtUwol tiibniaiica; M b«>t a body wlttioiit • •avi. If mMi wonM act riglit, gMWK-
IMlUs of all ktmla wouM tx ntalaaa. If vlatn ur naUena, «ba an tmt aaaMbkgw of
mm, iranU do right, thara would be no van or diaordcn in the mtiTcna. Bad aa
Indlndnab an, ataUt nc went, CIoIIm men with public aathoiitf, and almoat
uilTtnallj thay cooaidar thaniMtvae aa Ubafatad flmn Uii ofaligaUou id naral recti-
tibla.brauuaUiDy aTCDolaaga'aaManblc tojwtiee." 1 Ahmt. Una. SM.
■ lladiaon'* VJ/giaia B«|io«, JaiuMrjr, IftOO, pp. 0, 7, a, B; WabaUr'a Bytwhn^ 147
to 10», tlO. «11, 119 to 111. «
■Tha L^laUnra of Vli^glitta. In IVM.taaoltad "that tbm baa eonnMit arUtar
to oaaatnw tba Coaatiwtiatt «f tfci> DbIimI Stalaai tk« ConititiMion b«j«« a Mnall**
caMpart Utwaan aonndga SiaiMi «m1) Stale haa a ri^t to oamtfwa tha aomfMt fir
itaalf." Ototpaand Sootb Carolina hare Tcocattj maintaiacd tha mne daebina; and
it haa baOD aasattad ia the Senate of the Onllcd Siatta «ith aa Ubooaiaon di))da]r of
aloqinaBoe and paKinadtr. B Dana'i Abcfc1|^ <-li. 1S7, an. SO, f )3, fip. SS9, kc.sm:
Pana'i App. M to S!>, S7 to 73; 8 Anwrkas Annual KKffmtr, Ixual KM. ISI. It i*
not a littla m»rlial>le that, in 19)<\ tlta IjagiaUtufa «r Vitjiiufa th«a^ «<(tr difar-
mtljr, aikd than dMmad lb* Snpntne Gonrt a Ht and im^rtbl tiibunaL North Anatrf-
OAfUvlow. Octoter. l«M.pp.5Mi,SlS:S Vbat ILSSO. SSS. PfwuylnoU at tha
taoM thai, IhoDgh aba did not danf Uu conrt to be, vador Ibe Conatitiitiau, lb* apfao*
CR. tn.]
KATURE OP TUB OOSanTCTIMt.
2n
A majority of the 8tah.-ti, however, have never assented to
tfaia doctrine; uid It liiis been, at different times, resisted by
legislatures of several of the States, in the nwxst fonnid
cUrationtk '
§ 871. But if it were admitted that the Constitution is a com-
tlie couclmion that there is no conunon arbiter would
either be a oecessary nor a natural ooncliuion from that fact
ling alone. To decide npon the point, it would still be-
hoove OS to examine the very terms of the Ooustitution and the
delegation of powers under it It would be perfectly cotupctunt
even for confederated States to agree upon and dcle^tv uuthority
to construe the compact to a oonunon ar4)iter. The people of the
United States had an unquontinnable right tocooGdc this power
to the government of the United States or to any department
thereof, if they chose so to da The qnestion is whether they
are done it. If they have, it beccmies obligatory and binding
upon all the States.
8T2. It is not, then,. by artificial reasoning founded npon
theory, but upun a careful survey of the langiiag« of the Oonsti-.
tution itself, that we arc to interpret its powora and ita obliga-
tions. We are to treat it, as it purports on ita fac« to be, as
bflniMl, «M lUriTOiu or (ubatittiting aoam other irlitoi. Korth Atnarioui
id. G07, AOI. The irctnt KMlntioiHof )ier«ira t-egUIitnrr (inUarcli, 18S1)
thai A« now apfcons at Om Sofmrna Oourt •■ tbB imo uid conunoa arUUr.
« of the ezpadUaiM it Uu dM*hiw !«, Out U a doifi» StaM (Uny ■ pnm to «ibt
the Ooiiii4it«t»a, that pawm te to be detOMd iManet, anlev tlina roUTth* «t
StaH* «^U aftttwanU nuutate tliat power hj an amvuiliiieiil to the Coasthution.
^4 Etliot'* mb*l««, 821. What, thou, b to bo done. «bcf« t«n 8U1«* naolvn lb«t
a fomrt eiiita, aad 0D« llwt it doM not aiUt I Sco Ut. TiwPnrfdont Odluwa'a
ittcr of SStk Angnat, 1833, to Oarannr HauUloB.
> MMMirhmntn ofMslj oppoaed it in Ui* naolntiaM <i h«T Leglalatun «f tb« ISth
Fatonarr, 1TW, and JMlaMd"tkat the deeuioii o^^cMM ia la* ami fruity
OS mikr tha CanatliMlos of the Cnliod Stttoi, an^^ft oautnrtion of M lam
la punuaan lliHMr, an ndiHlTvly vmtad by tho^Bla^ tha Judici*] eonrtt
tbe ITntlad Stat**." ttaM't App. M. t<ix olh«r Statist that tlma, (earn lohaiw
ta Iba Mino rmll Nmtli Amorioui Rrnrw, October, 1B30, p. 600. And on
t otttdtmn a laiRsr nambcr h«T« macurrod on the Mi»e pouL Uane'a Af^ STi
St to S9. Similar naololioM bava bcaa [aaiiil b; th« LagitlatBrM «t iManra
and ConsMticut In 18SI, atkd by aene otiwr 8l«Ua. Row i* It poaaibia for ■ inanmt
to iwcincUo tbe •ottoa that each Stale ia the niprane judge be itaelf of the conatnic-
tkm or tlio Cooatiliftioa with tbe vaiy 6n( Traolathm oT the conrcntioa «tii«h fanaed
tba CwMtUntlw ; " lt«M)T«d, Ar., tbat a national pcofntnwat ought to b* artabUthe^
Coa^King ef a tufrtnt, lagialaliT«,)adlciu7, aad •xMulivo" I Joanub of Conm.
ItMt, 8Si 4 EOiot'i Databik M.
272 CONBTTTITTION OF THE UmTED STATES. [BOOK HI.
a GoNSTiTonoii of govemmeDt; and we are to reject all other
appellations and definitions of it, such as that it is a compact,
especially as they may mislead us into false conatructions and
gloBses, and can have no tendency to instruct us in its real
objects, (a) V - ;
(a) For tha coutnuy view see iarther, A. P. Upihur (PeUnburg, Va., 1S40),
Coiulractum Contlrued and OoitdUutioiu Profenor Heatj St. Oeorge Tacker's Lee-
Viitdiealed, by John Tajlor (1820), iVeu (urea on CoiutittUional Iavi (Richmond,
Viev)» of Ifie Comtaiaion of tht VniUd 1S43), and the ConJtitutianiU Fitte of Ou
Stata, br the sanM writer (1828), the for bttntten the Stata, hj Alexander H.
Beview of these CommeDtarlee hy Jndge Stepbeiu, 18S7-70.
ca. IV.]
FIKAL INTERPBETEB.
278
OHAFTEB IV.
TRO IS nKAL JtlDGK OB TNTERPRETER IK CON'SimmOXAL
CONTROTEftSlfK.
§ S73. The consideration of the qutystion whether tlic Consti-
tution has made provision for any coiimion arbiter to coiuttruu its
powere and oliligationK would pro]>erly find n place in the analy-
aid of the different c1sii»eit of that instrument But, as it ia
immediately connected vith the snbjeet before uft, it seenu expe-
dient in this place to give it a deliberate attention.*
§ 374. In order to clear the question of all minor points, which
might embamms ua in the discusfiion, it is necesftaty to suggest
a few preliminary- remarka. The Conalitution, contemplating
the pfKnt of limited powent, and distributing them among Tori-
ouB functionariet), — and the State govemnicnta, with their func-
tiouariea, being aUo clothed with limited powers, subordinate
■ The poiot wu T0T7 atroD^jlf argorA, uid math eonaiilarad, in Ihs mm of Cok>Bi
*L TiixiMa, in the Suirane Conrt in 1S31 {« W1u<i& H. SSI). The whole usHnwat.
u wdl u iIm jodfiDcnt, dtatrrc* ui BtteutivD reuliiig. Tha R>u}t to whkk tb*
Mfonnil «(daat tha «ibtMie* oJ ■ connira arbiter load* U [wwMited in a nty loMlbla
niMiMr hf Mr. CUrf JbhUm HanluU, lu paj^ 374, S7T.
"The 9Ueatiana pnwnteil to Ih« «o(ut hf the tir* &nt pabla Dwle at tlie bar an
of gnat naf^itnile, and May be tmljr aud ritalljr to aflbet t^ t^Bioa. Thej «Mhide
tiM iftqirity whelhcr tbe Conatiution and k«* a( the tlnilal Stalaa ban faaan Tiolatol
bf tb* iaifmuO, Tlikh tho ]i1alatifr« tn error acak t* r«Ti*w ; aad matatain tlttt, »d-
mlttlDg anch violall^s, tl b not In tiM ponw of tha gorerntaMit to apply a Mmciira.
Tb«r naial*in that tlia tntion doca uot pww ■ depattOKnt ca[iab1r o( rntniniag
paawtlr, and lijr mtboritj «f law, a»]r alt««p(« wWbh ma; ba made b; a part agaiatt
tin losiliniale pemm of tlw <rhal« ; uti thU the Kvranii|g^^^t>lncad to tlw altrr-
natlrt of aabmlUing l» anch alWnpt* or of rodatf af iham^^^^ Tfan; rnalat*!:) that
tlw CWlittitioo «f tha Onit«il StMiu hat pravideil mo ii^^^K thv Om) ocmtne-
tioB of baiir, or of tliB Uwt or irsalira of tha nation ; ^^ff&t thii power OMjr ba
enfciaad In the ImI Maort hf the ocnrta of ertrf SUU ia Ae L'tuon- Thdt tha Con*
atitnileo, Ian, and tnalica May Nodva a> manj oeaMrKUanii aa thrn* an fitatea ;
and lliat tbli ia not a MlMhlaf, or, IT a nilidiUr. la ImonedialilB. Thaae abitnwt
propoiitiom KT« to bg drtmnineJ ; for ho who ilemaBdi deciiuM without ptntitting
inipiiijr aAttM that tha detbioo ho adct do«* not depend on imintij.
"If Mch b« Iba Condttunan, It (• tha dntjr of thla oMrt to bow with iwapMrthll
autaMon to Ha pravblont. If mich b* m4 Iha Oonatittttloa. it b eqnaltf tbe dutf
of thla w«rt to ny ao ; and to perTom that iMk which Uw Amerioan peejila htn
ladgwed to the jodicial dtpwtnitait."
VOL, 1. — 18
274
CONSTlTCTtO!! OP TBE CHITCD STATES. [BOOK Ol.
to those granted to the general govcnuncnt, — whenever any
r|U«Htion arises as to the exercise of au}' power hy any of thejto
functionaries under the stato or federal guvcnun«nt, it is of
necessity that such functionaries miutt in the flnst instance, de-
cide upon the constitutionality of the exei-ciso of audi power.'
It may ariae in the eourae of the discharge of the functions of
any one, or of all, of the great departments of government, the
executive, the legislative, and the judicial. The officers of each
of these departments arc equally hoimd by their oaths of ofhce
to support the Constitution of the United States, ant! arc there-
fore consciuntiously bound to abstain from all acts which arc in-
ooDiiistcnt with it Whenever, therefore, they are required to
act in a ca«e not hitherto settled by any proper aiitbority, these
functiunarics must, in the first instance, decide each for himself,
whether, consistently with the Constitution, the act can l>c dona
If, for instance, the President is required to do any act, he is not
only auihori/ed but reqnired to decide for himself, whether, con-
sistently with his constitutional duties, be can do the act* So^
> See Iha Fnlmlul, No. 33.
* Mr. JtHtnoa carria hi* doctrino mui^h furthor, anil holdi tbat mch dep«Hnnit
or go*«ntniaiil tuM an Bxeltnive ri^ht, iiiiIrr|i>>iiilHnt of llio juJJciiry. to dtcida (or itMlf
a M the tne Maniruclion of IIm Conititiition. "Mir OMUtnetitm," myt ttt, "to
Miy didttent from that fon quote. It U, that each dopartOMiM of th* |[ovaniinitnt i>
tmly tnifajtndont of tha otficn, and hu an eqiial tight w dochU fbr Htmlt what i«
the iManlng of tbo Conalltution In tho lam antalnod l« lla aelloa, aai capBekUy
when it ta to Mt ultiniahJf aiij Bitlioat •p|waL'* AikI he proeenb t« giro tXHDjpJM
in >Ueh he diiregarded, nbcn fmiilrnt, ih» dediioB* «f tba jndiatrj, and nAtc t«
tiia alien and aaditian lain, and tho eaac of Mottnirr *. Madbon (1 Ctanch, 197).
4 ipfferton'a OonaapondtiKa, 314, SIT. Sm ako 4 Jefliiraoii'a ConMp. >7 ; Id. 7S ;
Id. 37% 371. M
(a) In Atl««iiii]r-GMMfal *. Bantov, t
Wia. C87, thv witm i^^^ettnnon ww
fntaoad Mill httlitr.^^^B* writ thai
Batatow, the gonni^^^H Stah^ «w
dafMled bjr tba peopfl^n tumm lor
TB.claction. Ctniun tfftaiam* aUeUon re*
Mnn Iran, namtholaaa, |ilacad on file
wUh tha State Boaid of OuinMn^ which,
together aith iba genaiae ntnt*^ gore
Um OB a{i|iartot niajcritjr over the ofipoi-
SngtMkdidalfc Thoivapm ha daJIwit t»
annttader tW tdHc* *t the ead at lb*
una. Hid on f tw minvnA) agaiut him
In tiM Sapniiu Court dtnied tbe astbor-
Etj of that «antt t» eoHMder and decide
npon tha Utia lo tba offica^ Ilia (MdlloB,
at ataiad bjr hia oaai»td, wm a« Mlooa: —
*'l. The thne dapaitatnU of tbe
BlaM gDveramrnt, Iba kgialalhtv the ex-
(culivis awl jn'lidal, m eqatl. oo-ecdt>
nat^ and ind(|iandctrt tt a>ch oilier i ead
thatMchd^attaaaetaittethaKad ii tbe
nltintata judge of tlie dntiDn and ^oaU*
Rcatlcn «f its own niBniWr oa Bnnban^
antgrat o«lr to intpaachmmt and aiipnl
lo tha pnDf>le,
"i. That thiicounmut take Jsdldal
notice of wbe ta govtmor ct Iba State,
CH. IT.]
FINAL OmsPBEUS.
27E
if a propoBition be before CongrcM, every member of the legia-
lotivfi IkkI; 18 bound to examine and decide for liinuiclf whcthor '
tfac bill or rmolution is within the constitaitional renoh of th«
legiftlative powers confided to Coniijesa, And in m»ny oucs the
deciaiona o( the exucutive and legiHlative departments, thus made,
become fittal and coacluKiTe, bcinff from their very nature and
dioracter incapable of revision. Thus, in measures exclnsiip-ely
of ft political, legislative, or executive character, it is plain that
OS the supreme authority, aa to these qucBtiaiui, belongs to the
Icgislutivo and executive dcpartmontit, they eanaot be rcH'xatnined
eUowhcrc Thug, Congress having the power to declare war, to
l«vjr taxes, to npjjropriatc luouey, to regulate interoourse And
commerce with foreign nations, their mode of executing tiicsc
powers can never become the subject of rc-cxaminatiun in any
other tribunal. So the power to make treaties being confided to
the President and Senate, when a treaty is properly ratified it
b«onincs tlie law of the land, and no other tribunal can gainsay
its stipulations. Yet cases may readily be imagined in which
a tax may be laid, or a treaty made, upon motives and grounds
wholly beside the intention of the Constitution^ Tlie remedy,
however, in snch cases is solely by an appeal to the people at the
elections, or by the aalotary power of amendment provided by
the Constitution itself.'
§ 376. But where the question is of a different nature, and
capable of judicial inquiry and decision, there it admits of a rery
1 Sm i ?Mi.A-9 IVUlMk S15 to SUL
* Tlu rttlcralut, Ko. M. Hr. llmdiaMi, in tbe Tirgiiiis lUport of Junury, IMO,
ba* enne iato ■ con>idanlwn at thSa point, uid vccj pfopsrlj MigpsUd that thera
imjr U iarnuTtion* of tlw OonKitiitira ncit wUliiii tba reach of lb* Jiidlcl*! pawvt, <r
ca{iaNB of raacdkl radnM thna|^ Iho inatnmmuUtjr o( oMirU ol Uv. Rut wo
ONHiot afTM wUb bin, tbat tn &aeb omm (wh SUM nttyfake th« coMttiMtlm of thi
ConMitiUtai Into lu own kind«, uiil doeUo for itaelf ii.fcbat nnn ; ■luhltM I
that in • fiwn of judicial ts^Uuio* tliB iltcinon U notliiBding on tbe Sute*. 6ea
B#p)rt. pp. 8, J, 8, fit
whra b* wa* lAaaguTotod, the RCDiUMBMi
of liU tIgMture, kc; knil tbfmkM can-
not liBW argntntnt otrriiltiKe upnn tlx
inb|i«t4. Tbit «Im i< rigbtTallr entitled
to tiM offloc of fovtntm tm i* no otae
bceon* a}ndldal qmntkai, and
"8. That tb« OaartltnUon pmridw
■« Bwtuw for ouslli^ ■ fnooeofai nnrpcc
of tilbar of lb* tlmtt dopaftmcnta of tbo
g»T«nnient ; ilut tkit pomr ntt* wttb
Ike p«opi^ to b* Mcrnted Iijr thcni when
tfcej Uiink tbe exlgmej nquina jL'
The ttajtliBgdoctiiiN tobraadlfitattd
reccircd to little MuatNunwe ban ttia i
cooTt to whifh !t •■■ adilneaid •■ |
Marcrljr to bs trotted witb tbe conKeajr </J
a dlMnaifon.
276
coKsincnoN op thr ukiteo btatis. [book m.
different conBidcrntion. The decisioo then made, whether in
furor or Kgainst the constitutionality- of the act, hj the State or
hjr the national authority, by the legislature or by the execntiTe,
being capable, in itt« own nature, of Ixing brought to the tent of
the Constitution, is aiitiject to judicial rvviHJou. It is in such
ctu^ea, as we conceive, that there is a final and common arbiter
provided by the Constitntion itsvlf, to whww decisions all others
are aabonlinate ; and that url)itci^4» the supreme judicial aathor-
ity of the courts of the Union.* (a)
' Dkiw't Afif. U M, 45, ]>p. S! to (S. It »thii» M* f«rj iIumtd K»tiRc«tk<n to
<ivate the Mlonng |Mng« [Mm tb* leuMd ComncnUtiw of Mr. Cb«se«Di>r Ktnt,
Ibui wluin T«r7 fc« jwdga in onr oonatrT' an mim fnlmndlj roned En ooDMitn-
Uonal law. AAer tMunentiag tb* jvdSdU poven in tbc CMutiUtioa, be prooteJ*
to obKm : "Tha pmfrittj aad fitnca of tboe jodicial powna Mtn to nmlt, h ■
ju«M«Mr coDaaqoene*, trim tbo snlon of tbaaa Stataa In «w mrinnai fmttamnKt,
and ihej nu; be oontideml at raf nialta to ft* ralalaiwa. Tbs JudkU powar in amy
garenimont muit be cnritcnairc with tba power of Idgiilation. Vtn Oun b» paw«r
to tnlfrprct, pinQoancc and cxetnto the kw, tha gwwiuant wooM tttbor pniA
throujth lu own ImbcvUlly, at wti tba ouo witb tbe old oonredemijan, or otbcr p«»Mi
Biwt ht aMumcd by lb* l^lailr* W; lo tba dattroctku of llbtity." 1 Kanfa
' Oeoun. (3d cd. [L SM), I.ac1. U. SJ7-
(a) Tin aDthor «]Waka ban <rf « <I*-
j obkn Bw or againat tbe toNatitwtionalitj
[«( a pnrtienlar ML Cpea anob a qiica-
' Ika, a* h* tnd; mnuki, the final atUtaf
I Is " tha aupnm* jaitlcUl antboiltr of tlia
I ooiuta of tiie Unaon." Tha final dacidon
I of that nntboritj i* binding span all the
I faopla, all tha Sutaa, and all tho depaH-
MtBis of tbc ganenJ gavrniiMet
Bat aa brtwren thtw aannl dvpart-
nMnIa,tbe» an and ma>t be bounda to
I iMa EMidndvanaaa of adjudication. Tlia
^^naalka tbat la Judicial to^f niajr ba po-
Ljltlcnl t«-«nam«. Judicial qneitioaa tba
I «OMrtadMiid«; poUtioal an addnwd to tba
^viadc* of the Icgiiktarc. To-day tha
gaMtka my be iriietbtv a« axlwing act it
IVMttiinioaBl. nt ia p««l; Judicial.
[ Tn-momiw the art nuj bkve upind, and
tha ^uaaiion nuqr be wlMtbtt it Aonld ba
raaaatttd. That iinnlion it political.
SwjifMM tfaara ba no othra obitction to iU
I M-cauKtMKBt than dcabti of ita oonttita-
I tionalit J, are k^ilatota bound to dtlar to
[th«Jndj{Bc«tel tba oonit in tha axardaa
of the k^alatira function, and thenloi*
to it-mact the law, thonnh la tbfir n<rn
view It naj lit • cleat and dunKtroua in-
fnction nt tba Conatilutioa f TUa i* a
qweatioa ^nite naide fram tbat ben di»
ciutod hf our antbor.
Aa Qlaatratlnjt Ihia i)Matlan a notnl
iMhniot tnaj !» nfcmd to. I'nviam to
1S33 the Soprano CmK «f Ibe Unitad
Stota bd in a dellWato dacjdott da>
flarad tbat Conpaaa had tha powtr to
ehtftar a Bank ef tha Unitad Sudn.
Bat in IStS tha queation of t«-diaft«c
aritinft attd a bill haTtog pMaed tba two
houtea for the pnrpcw, Prtatdrfit Jackson
Tctonl it. In the eoune ef hia veto nca.
■me be mjt : —
" It <a nMlutainol bjr Ibe adroaUe* of
tba hank, that lu oavulilutlanall^, ia all
ita faaturaa, oa^bt to bt ooHUarad aa
laltlad bf |«KedeBt and bjr Uie drciaion
of tba Suimme Conrt. To thia ocvcltt-
aioe I enwot aavut. Mere prMtdaat ia
a dangnon* touica of authoritjr, and
ahonU not ba ngtnUd aa dcdtUng qaav
CH. IT.]
nSAL ISTEEPBKTKR.
«n
g 376. Let 08 examine the grounds on which this doctrine is
niHiutaincd. The Constitution declares {Art 6), that " 2%t*
Ilan>of«>D9tiIutioiial lOirn. rxoeptwhcn
tbn Mi]ui«Men«<! at the pcopln and the
State* can be conndcreJ m kcU »rttlcd.
8a Itx (ram thto \mbig th« cue m tUa
Mt)|«ct, *n •n^uiDNit agalmt tha bwJc
»igbt bo bu«l on praocdaut. One Con.
grm. In 1791, docidnd In Iivorof abuik;
Uiethw, b ISll, dMiiied ipibMt lU Ous
Cungrvn, in IS 16, ibtiiUd a^ant &
T»uik ; uiothor, in 18Id, decided in it*
fkvor. Prior ia Ihit pnoanit Congnaa,
Ihviffiirc, thp prronlfHta dnwn from th»t
toUR'n wrrv wiiial. If wb mnrt to tliit
Statu, tlic uprcjuiona or Ipgiilniivc, rx-
•ratira, and judicial opinion* ajpinit the
l«ak have beta proiiMy to lliviw la Ita
brcT H four to oDa. Tb«rr la nothing in
pnetdent, thcrororo. which, if ita author-
ity won ailniitltid, «ii|{bt to iridgh in bvor
of the act before m«.
" If th« opinion of tba Su[>rctiic Court
eonnd tha wbol* pwati of ihla act. It
onf^t not t» «Mtnl ifca c^nrdinata au-
tbentka id thi* eonmincnt. The Con-
grwi, iha wccmlivi-, an>l Um muK oinit
each for itatir be guided bjr its otm
opisioM of the Conxitntkoi. Kach pub-
lie oOen, aha takw ad talk to aupport
tha 0«uMilulkai, ■««>(* that ha will nip-
port It aa bo snikfMaiidi it. and not aa it
i* luderttood hj othcn. It la ai much
tha duty of tha Hoaaa of lUiatoantallTaa,
ef Ihr Sxnalo, and of the PnaMenl. to
dtvlde apon the oonMitntioaalitj of aay
bill or molutian «hieh maj be ptuanted
to thMD for piaiaga or approntl, a* It ta
o( tba mprau* JudgM when it may be
bronRtit befoi* llMn br Jodiiial deoiiisa.
Tbv u(«niMi of ttiB jiiJ^H hu mo mora
anlliontj ore* Oa^tna than the ejdkioM
•f CciaipvB haa one tba jodfaa ; tai, on
that point, lb* PiMtdnt I* tndepaiHUot
of both.
"The anthorftr of the Sttpreme Oovtt
nwat not, tbmloie far ptnuitiad to oon-
trol tha Confnai or tha «Hcnllv«^ vhrai
aetbtg In thMr ItglaUtiT* nfuOlim, bat
to have only xnch infloeneo aa the force of
their rtuioninH may dcanrvr."
Again, <!iiiini{ tli« adniiiiMtntioo of
fml'lnnl BucIiniiMi the Sapreme Conil^
in a caw before it involving a ^naatioii tt\
peraoniil liberty, donlrd thn porer ot COo*
gma to fxrlado ulavcry (rum the Ttatl-
torir*. This opinion bpcame of vital
interval nnil inipoiUncc in the Pnaidcn-
tial t-lcction wliich rollovud, and PimUuiI i
linooln Ihna rafcrrod to it in biainauffnnil;
" I do not forget the jHwition twam«<l by
sotnei that vuuitilulion&i iiaaitiona are ta
be dea<)Fd by tho SupririQii Court ; nor do
1 deny tbiLt aoch deciiloiu nuat b* bind-
inn. In any caa^ upon the partial to a
«uit, M to the otgect of that init, while
they an alao entitled to T017 high ro-
apcet and couddoratlon In all [laraltel
caiea by all other dapartmenta of the gov-
eroinent. And while it la obviooaly poa-
Bible that auch doeialon may be anonaeiM
Id any i^vtn caea, etill the eril efliMt fol-
lowing it. bring limited to that particular
eiH, wilb the chance that it may fat enr-
mled, aod nercr baeoma a pncadent for
other caaaa, ceabMlar be borne than could
the mrila cf a ^Ifetvait practjoe. AI the
aauc tima the candid dtlien mniit con-
iNa that if the policy of the giiveiiiment
«pan vital qncetioiiiw aOiwting the whelo
people, li to be iltcTooably 6inl by d^
ciaion* of the Sn[nme Court, the l«it*U
they are mde in ordinary Utlgatkn be-
tween putice in petaoaud aetkau^ tha
people wlU have oeMed to be their own
Tuh^ hatiag to that axtont practkaUy
rreagMd thtir gevwanctit into the hrwdl
«f that eniBcM tdbnaa).
" Kor ia there in thii view any a— nit
npon the oonrl or tha judge*. It li a duty
rtoae which they may not ahrinh, to de-
cade easce ptof^Hy brought before them,
arnt it ia no bolt of thUn if other* aeek
to tnm thdi decjriant to political pur-
poaaa. One aectlon of enr country fco-
lisrea ilaTtry U rigkl end ought to h% <
S78
CONSTtTUTIOS OP THR iraiTKD STATES. [BOOK lU.
Cousiitution and the iatea of th« Uiiltcil Stat«s, which shall be
ntade in [mniuancc tlion-of, aud ult Irtatit*, Ac, shall be the
tuprtme lait of the luiid." It also declares (Art. 3), that "the
judicial power shiiU extend to all cases in taw and equity arising
under this Cotutitution, the laws of the United Statea, and trea-
ties madti, and which shall l>e made, under their authority." It
fiirthor declares (Art, 8), that the judicial power of the United
Stales "nhall l>e vested in one Supreme Court, and in such infe-
rior courts as the Congress may, &om time to time, ordain and
eetahllsh." Here, then, we have exprosa ai»d dt-tenuinate provi-
sions upon tlie very subject. Xuthiag is impcrfcvt, and nothing
is left to implication. The ConstitutiiHi is the uuprcme law;
the jtidieial |>ower extends to all caMM arising in law and otiuity
undnr it; and the courts of the United States are, and, in the
last reaort, the Supreme Court o[ the United States is, to bo
vceite^I with this jtidicini power. No man can doubt or deny that
the power to construe the Cunstitutioo is a judicial power.^ The
> I Dm*^ AtMt- eb. 197. ut. so, { IS, p. SW; Duw'( App. f IX fp. «Sk SO;
J M, I>^ SS, M ; 1 WilMrD'i LraUm. (SI, ttO, 49S.
oUmM. «U1» tha otlier b«li«T«i It b
WTMf awl «aglit Ml to Im «itMd*d.
TUi {■ tb« aoljr MlMMtial <IUpaw. Tin
fbgftiwbTn eimn of tlw 0»wUt«iaa,
mm! tha kw fb( tht wiypiwilBa «f tite
'IW»%B alM^Md)^ wa fA M *dl «■•
tocaA, ptriar*^ M M7 hv «M «*«r h* U
• nMHraatt; wfaan tih* Boial «Ma of tlw
ft<fU tMpatfrctlr ■anam tb* Imt OttO.
n* xmi bed; nl tha pioylt abUa by tlM
tryUfii •U^Mka la faUl<»a^ wd •
th« tawk am h «Mk. nu I Hunk
«MMl Im fmtK^mni; ud tt ««ild
htwMW ta kttk «MI^ afkn^ tW -irua-
tloa of tfca mjHim tUa MbMk TW
Pn>m4, >««U ba aUhMMr ml?^ vidf
«at MBMlM la «M mtHmt ^Sk
t-ia I wl *wW at b» ■maAiJ » ri^
hrtha««W.-
Sack vna th
jMbaa m4 liMria.
«p^^ly II lull t by
r tW iMd «nit^ Cknr nd Xf. Wab.
nd u aanaMljr dehaded. The
id km alio ban nhfteM *» ■>>up
crilkkqi. uatMjf at llM kuda of Pro-
Imar SuMd Trkr in hk Xnm^ at
CUtf Jwliea Am^. Wa eootart o^
«b|¥« hat* with • ifc^l nmtaki tbt
bMwdaty batwvaa b^kUiT* aad jmlidal
pow«r U ia Krami clar. Tb tbdan
vhal tba kw <«, b tba pmiaaa af tha
kltar; to ikafac* «hii it ai*U k. aritfaia
tba HtaiM d( tha C«aMttMtie«K pMaiaa la
t)v fanv. Aad «k« iha ^aatka h
wtet m *aw HMia, it k tk* daty «f
anty'pMty calkd ipn to «anek« is
JaiHiaaiBiaaikirtB. ttaMOfaimm-
I - 'j. '- - - --
tha Bghtfeawa •»«».(*'
Ifat b« daa
th*
t» Ma. Wn «t w hk
nat k • al^ !■«(«. aad jMl nk kr
k iihO 111 la ihM k I itii
CH. IV.]
PIKaL II
£79
power U> coniitTue a treatv is flearlf so, when the case ariBes in
jud^nent ia a controversy belwocn tndividuala.* Tbc like prin-
ciple must apply wliGru the mcauiaf^ of the CuustitutioD uritKW in
a judicial controvcrey ; for it is aii nppropriuU^ fuiiotJun of tlio
judiciury Ut cuustruo InvKr* If, thi-n, h case uudi-r the Conittitu-
tloii diM» ari«e, if it i» capable of judicial examination and deci-
aion, ve sec tirattnc very tribunal i» appointed to make the
dvcisiotL Tli« only jKiint left open for controversy is, wbellicr
such decision, when made, is conclusive and binding upon tlie
Staler nnd the people of the States. The reasons why it should
be so decnked will now l)c aubmittect.
§ 877. In the first place, the judicial power of the United
State* rightfully extending to all such oasea, its judgment bo*
oomea i^faeto conclu»ivu twtwecn the parties before it, in i»- 1
Bpect to the points decided, untves some mode be pointed out by
the Constitution in which that judp^cnt may be revised. \o
such mode is pointed out. Goni^rvits is vested with ample au-
thority to provide for the exercise by the Supreme Court of ap-
pellate jurisdiction from the decisions of all inferior tribumila,
whether State or mitional, in cases within the puniew of th«
judicial power of the United States ; but no mode ia proridod by
which any sujjcrior ^ihuiuij can re-cxuminc what the Supremo
Court bos itself decided. Ours is em|)hutically a jrovemnient of
laws and not of men; and judicial decisions of tlic highest tri-
buital, by the known course of the common law, are considered]
as estublishing tlie true coustructioii of tlie laws which are
brought into ooutroversy before it. I'be eaae is not alone con-
sidered as decided and settled, but the principles of the decision
are held, as precedents and autliority, to bind future cases of the
same nature. Tliis ia the oonstant practice under our whole sys-
tem of jnriiiprudeno& Our ancestors brought it with thorn when
they first emi.Lrrated to this country, and it in, and alwaj-s has
been, considered as the great seeurity of our righta, our liberties,
and our property. It ia ou this account tiiat our law ia justly
deemed et-rtaio, and fonndi'^ in permanent principles, and not,
dejHMident u]>on the caprice or will of particular judges. A '
more alarming doctrine could not be promulgated by any An>eri-
■ 8m AddnM of CoDgrtss Fib. 17$7; JMnttUd Ce«igti«M>, 33; BA«k m tb
OtMtlUlloB, App. X ^ Sis.
■ Bwon't Abtidgncfil, SUbttc IL
280
CONSTITUTION OF TUB UNITED STATES. [BOOK II).
can court, than that it was at Hbertj- to (lisrv^anl ull former rules
|an<l deciBiono, and to decide for itwU, without reference to the
settled courao of antecedent principles.
§ 878. This known cournc of pruCii'dmg, tills settled habit of
thinking, this couclusivo effect of judicint adjudicntioiis, was in
the full \-icir of the fnuuera of the Constitution. It woh re(}uired
and enforced in everj State in the Union, and a depart^ire from
it n-ould have been justly deemed an approach to lyrunnj' and
arbitrary power, to the exercise of mere discretion, and to the
ab«ndonu>ent of all the just checks npon ju<licial autliority. It
would seem impossible, tlieii, to preatuue, if the people intended
to introduce a new rule in rc«pcct to the decisions of the Supreme
Court, and to limit the nature and operations of their judgments
in a manner wholly unknown to the common law and to our ex-
isting jurisprudence, that some indication of that intention should
not l>c apparent nn the fa«e of the Cnnfttitulinn. We find {Art
4) that the Constitution has declared, that full faith and credit
shall be given in each State to the judicial proceedings of erery
other State. But do like provision has )>een made in rcHpect to
the judj^nents of the courts of the United States, because they
were plainly supposed to be cd paramount and absolute obliga-
tion tliruuifhout all the States. If tlie judgments of the Supreme
Court upon constitutional questions are conclusive and binding
upon the eitincns at large, must they not be equally concltuive
upon tlio States? If the States are parties to that instrument,
are not the people of the State* also parties ?
§ 879. It has been said "tliat however true it may bo that the
judicial department is, Ju all questions submitted to it by the
fonns of the Constitution, to decide in the lost rvsort, this resort
inu8t necessarily be dc«mcd the last in relation to tht other cU-
parimentt of the goPtmmfttt,not in relation' to the rij/ktt of tkt
partiet to the eongtitutiontU compact, from which the judicial, as
well aa the other deportments, hold their delegated trusts. On
any other hypothesia, the delegation of judicial power would
annul the authority delegating it; and tlie eoneurrcnee of this
department with the others in usur|>ed powers might subvert
forever, and beyond the poasible reach of any rightfat remedy,
the very Constit^ition which ull n-ere instituted to preserve."'
Now it is certainly possible tliat all the du[>artmeuts of a govern-
> Usliaan'i Tbgiidt R«|>erl, Jau. leoo, n>. 8, «t
CB. IT.]
PIKAL INTEBPRETen.
381
tnent mky conspire to subrert the oonstitutioii of that govcmm«nt
b; which they are created. But if the;- should so coiupire, tliere
votild atill romain an adequate remrdy to redress the evil. In
the first place, the people, by the exercine of tlie eloctire fran-
chiiie, can easily check aud remedy any dangerous, palpable, and
deliberattf infraction of the CotiHtitutioo in two of the great de-
partmcnts of p>vernmcnl ; and in the third department they can
remove the jud^vM* hy impeaclimcnt, for any corrupt couapinicicii.
Bciiidefl thcHc ordinary remedies, there is a utill more extensive
one embodied in llic form of the Constitution, by tlic puwer of
amending it. which is always in the power of tlirL-e-fuurlhs of
the States. It is a supposition nut to be endured fur a raonient,
thnt three- fourths of the States would conspire in any dvliboratc,
dangerous, and pKlpnble breach of the Constitution. And if the
judicial department alone sliould attempt any usurpation, Con-
gre«s, in its legislative capacity, has full power to abrogate the
injurious effects of such a decision. Practically speaking, there-
fore, there can he very little danger of any such usurpation or
deliberate breach.
§ 8H0. But itf^is always a doubtful mode of reasoning to argue,
bom the jMssible abuse of powers, thnt they do not exist ' I^t
ua look for a moment at the consequences which flow from the
(locti-inc on the oUier side. Tliere are now twenty-four States in
the Union, and each has, in its aovereign capacity, a right to
decide for itself in the last resort what is the true eonstructioa
of the Constitution, what are its powers, and what are the obli-
gatiuna founded on it We may, then, have, in the free exercise
of that riffht, twenty-four honest but dififcrent exijositions of every
power in (hat Constitution, and of every obligation involved in
it What one Suite may deny, another may assert; what one
may assert at one time, it nuty deny at another time. Tbia is
not mere supposition. It has, in |>oint of fact, taken place.
There never has been a single comititulional question Bf^itated,
where different f^tatea, if they have exprcased any opinion, have
not expressed different opinions; and there have been, and from
the fluctuating nature of tcgislative bodies it may be supposed I
that there will continue to be, cases in which tliu sumo State will
at different times bold different opinions on the same question.
Uossuebusetta at oue time thought the embargo of 1807 uncon-
> 8m AudmM *. Dmm, < WlioUoo'i B. 3M, SML
282
C0N8TITUTI0K OF TBB tWrTBD STATES. [OOOK in.
V
atitutionnl ; at another a majority, from the change of parties,
was as decidedly the other way. Virginia, in 1610, thought that
tho Siipi-erae ('oiirt wa» the common arbiter; in 1829 she thought
differently.' What, then, is to become of the Conatitation, if
its powers are thua perpetually to he the eubject of dcboUi aud
controver»y ? What exposition is to be allowed to bo of authority ?
1b the exposition of one State to be uf authority tlicre, an<l thv
reverse to bo of authority in a ocighboriug Htate cutcrtainiiig an
oppciflite exiioBUion? llivn there would be at no tinio in tlic
United States tlie some Confttitution in operation over Uie whole
people. Is a power which is doubted or denied by a single State
to be suspended cither wholly or in that State ? Then the Con*
stitution ia practically gone, as a uniform system, or, i,ndoe(), aa
any syntcm ot all, at the pleasure of any State. If the power to
nullify the Constitution exists in a single Htote, it may rightfully
exercise it at its pleasnre. Wouid not this lie a far more dan-
geruuK and mischievous power than a [Miwer granted by alt ^e
Htatcs to tho judiciary to congtme the Constitution? AVoold
not a trihimal, appointed under tho authority of nil, be more
aafe than twenty-four tribunals, acting at their own pleaiuirn, and
upon no common principles and co-operation t Suppose Coitgreu
should declare war; shall one State have power to suspend it?
Suppose Congress should make peace; shall one State hai-e power
to involve the whole country in war f Sn|q>OBe the Preaident and
Senate should make a treaty ; shall one State declare it a nullity,
or aubject tho whole country to reprisals for refuaing to obey it?
Yet^ if every State may for itaelf judge of its obligations under
the Cons t i tut i (HI, it may disobey a particular law or treaty, be-
cause it may deem it an unconstitutional exorcise of powerj al-
thuu^ every uther State eball concur in a contrary opinion.
Suppose Congress should lay a tax upon imports burdensome to
a particular Stale, or for purjMses which such State deems uncon-
stitDtional, and yet all tho otJier States arc in its fa^-or; is tlio
law laying the tax to become a nullity ? That would be to allow
one State to withdraw a power from tlio Union which was given
by the peuple of all the States. That would Iw to make the gen-
eral guverumont the eenrant of twenty-four maatere of different
wills and different purposes, and yot bound to obey them all*
> IHiio'* App. H<<>*I'. I>P- MtoGS, JM, p. 0«; 4 ClUofa Dolata, 83S. Sit.
* WtUMt't S|>twhM, ISO ; 1 KlUet'aUvUtcfc CJ*.
CD. IV.]
FIKIL INTCBPBETBB
S8«
S 381. Tbe ailment, therefore, arising from a powtibilitr
of an abuse of power, ik, to ftay th« least of it, quite aa strong
the other waj. The Constitution is in quite as ]>eriloits n state
from the power of overthrowing it lodged in erery State in the
Union, as it can he hy its being lodged in any department of the
federal goverDment There is thin differences, howerer, id
the caaes, that if there be federal usurpation, it may be checked
by the (woptc of nil the Stutf.'s in a coustitutionat way. If there
be uaurpatioQ by a Dingle State, it is, upon the theorj' we are i
confiidtTinfr. irrcnit.>diublo. Other diilieulties, however, attend
the reaiHtmug we are cutntidorin^. When it is said that the de-
cision of the Supromo Courf ia the laat rcMOrt is obligatory and
fiual "in rektioii to the authorities of the other di-]uiH rui-ut« of
th« government," ia it meant of the foderul go\-vrament oi]ly, or
of tlic Status also ! If of tlie former only, tlicn the Constitution
Is uo longer the supreme law of the land, nltlioiigli all Uic State
functionaries are bound by an oath to eup^iort it. If of tbe latter i
also, then it is obligatory upon the State legislatures, executirce, <
and judieiaries. It binds them; and yet it does not bind the
people erf the States, or the Stales in their sovereign capacity.
"Die States may maintain one construction of it, and tJic fono-'j
taoDariea of the State are bound by another. If, on the other
hand, llic State functionaries are to follow the construction oC
Uie State In opposition to the oonstnictinn of the Supreme Court,
then the Constitution, as actually ndminicitercd by the different
functionaries, is different ; and the duties required of them may
be oppoitito and in »>lliaion with oach other. U such a stute of
things is the }iiftt rcault of the reasoning, may it not justly bo
suspected that the reasoning itself is unsound?
§ 382. Again, it is a part uf this argument Ihat the jtidieial
interpretation is not binding** in relation to the rights of the
parties to the constitutional compact." ''On any other byitotbe'
sis the dolegatiuu of judicial power would annul tlie autiiurity
delegating it." Who, then, ore Uic parties to tliis contract t
Who did delegate tbo jmlicinl iw)wer* Let the iustmment an-
swer for itself. The peoj)lo of tbe L'nited Statee are the pai'tics .
to the Constitution. The people of the United States delected
the judicial jmwer. It was not a delfgatiou by tlin ]>eoplo of one
State, but by the people of alt the States Why, then, is nut a
judicial deeision binding in oach State, until all who delegated
SSI
CONSTITUTIOK OF THE UKITBll STATE*. [BOOK in.
tho power in Aomo coiuititutioDal maimer concur in annuUing or
OTeiTuling: the decision ? Where sluill we find the cluuse which
give* tlie power to each State to conatrue thi- Conalitution for all,
and thus of itself to supersede in its own faror the constnictloo
of all the rest ? Would not this be justlj deemed a delofiration
of judicial power which would annul tho authority ddcuating
it * ' Since the whole people of the United States have concurrwi
in establishing the Constitution, it would seem must consonant
■with reason to presume, in the absence of all contnir}- stlpulo*
tiona, that they did not mean that its obligatory force should
depend upon the dictate or opinion of any siu);lc State. Even
imdcr the confederation, a« ha» been already stated, it was unan-
imously rc)H>l\x-d by Congrcas that "aa State Ic^islaturca arc not
competent to the making of such eompocts or treaties [witli for-
eign states], $0 neither are they eompetent in tJtat mpaciltf ui*-
thoritative}y to decide on or ascertain tho ceiistniction and sense
uf them." And Uio reasoning by whii'h this opinion is supported
seems absolutely uiiaiiswerable.' If this was true under such aa
, instrument, and that construction was avowed before Ihe whole
'American jieople and brouglit home to the knowledge of the State
legislatures, how ean wc avoid the inference that under the Con-
stitution, where un ex])ress judicial puwer in cases arising under
the CouBtitutiou was provided for, the people must have under-
stood and intended that the States should have uo right to ques-
tion or control 8uch judicial interpretation t
§ 883. In the ne.tt jilaee, as the judicial power extends to all
casea arising under tlie Constitution, and that Constitution is
declared to be the snpreme law, that supremacy would naturally
be constnied to extend not only over the cititens, but over the
States.' Thin, however, is not left to im|)licatinn, for it is de-
clared to t)e the supreme law of the land, ** anything in the Con-
stitution or laws of any State to tho contrary notwithstanding."
Tho pi-oplo of any State cannot, then, by any alteration of tlieir
Stato constitution, destroy or impair that supremacy. How,
■ Tim* U Tiut bTM In tho nuoning at Mr. Wetnter ott Uib MlitMn, in hfa grau
•pcwk ««i Mr. Fixit'* nMluticou in tlu Sanata, In ISSO, wUil) mD diwrrw tlw atttn-
tioo of eirtnr slataMnu ud Jariat. Sn i BUiot's IMataii, 33S, S39. Mi, Sl(, and
Vabrtcf'* SpcMho), pp. 407. 408, 41«, 419. 490 : Id. p|>. 430, iSl, 432.
* Joaniali ef OsttgrM, April 13, 1*67, p. i%,tK. Ila«l«ga theOoMtitaUoii, App.
8, f. 81S. ka.
* Tbe F«den]i*l, Ko. 38.
CH. IV.]
FINAL tNTBSPnCTER.
286
then, can they do it in anj other leaR direct manner? Now, it
is the proper function of the judicial department to interpret
laVH, and by the very terms of the Con«titutiou to interpret the
supreme law. Ita interpretation, then, becomes obligatory and
coDcluaire upon all the dc|iartnicntfl of the Federal goremnient,
and upon the whole people, ho far as their riglita and dutiett are
dcrired from or affected by that Constitution. If, then, all the
departments of the national government may rightfully exorciao
all the powers which the judicial department has, by its intor-
pretatEon, declared to be granted by the Constitution, and are
proliiltited from exercising tho8« which arc thus declared not to
be grantod by it, wotiM it not be a solecism to hold, notwith-
standing, tJiat finch rightful exercise should not bo deemed tho
supreme law of the land, and audi |>rohil>ited powers should still
be deemed granted ! It would seem repugnant to the first no*
tions of jtmiiRp, that in resjiect to the same inatrament of govern-
ment difl'erent jmwers and duties and obtigationa ahould arise,
and different rules should prevail, at the same time, among the
? governed, from a right <rf interpreting the same words (mani-
festly used in one sense only) in different^ nay, in opposite
Bensea. If there ever was a case in which uniformity of inter*
pretation might well be deemed a necessary (wstulate, it would
seem to be that of a fundamental law of a government It
might otherwise follow tiiat the same individual, as a magis-
trate, might i>c boimd by one rule, and in his pri^'ate capacity by
another, at the very same moment.
§ 884. There would be neither wimlom nor policy in such a
doctrine; and It would deliver over the Constitntion to intor-
> minable douhta, foundnl npon the fluctuating opinions and char-
acters of those who should from time to time bo called to
administer it Such a Constitution could in no just scnsv bo
deemed a law, much less a supreme or fundamental law. It
wonld have none of the ec-rtainty or universality which arc tlio
proper attributes of such a sovereign rule. It would cntuil npon
na all th<> miserable servitude which Iius been deprecated ns tbo ,
result of vague and imccrtain juris]>nidenee. Mitera ett e^n't'ttia, '
ubijju «tt voffum aut tiuxrhtm. It would subject us to constant
discussi'ins, and |K-rhti|M to civil broils, from the [M.'rpvlually
recurring contlicls upon const i tut iuual questiuns. On the other
hand, the worst that could happen from a wrong decision of the
286
CONSTITtn'ION OP THB OKITBD STATES. [BOOR HI.
judicial dcputmcot would be that it might require the intcrpo-
sition of Congrtss, or, in the Itat report, of th« amendatorj*
power of the Stntt'*, tu redrens the |ri'ie\'8nce.
§ 885. We fiod the power to contitnie the Constitution ex-
press!}' conlided to the judicial department^ witJioiit any limita-
tion or ({ualificntion an to its conclusi rentes. Who, tJion, is nt
liberty, by geoei'al imjtlications, not from the teriiui of the in-
stmmont, but from mere thoory and asHumed reHervationa of sov-
ereign right, to inAert Buch a limitation or qualification ? We
6nd, that to produce uniformity of interpretation, and to proservo
/ the Constitution aa a perpetual bond of uoiun, a supremo arbiter
' or authority of construing in, if not absolutely indispensable, at
least of the highest possiblu practical utility and importance.
I Who, tben, is at liberty to rcnson down the terms of the Cunstl-
(ution, to as to oxcltule their natural force und opcratiuu f
§ 386. We find that it is the kno«-n courBe of the judicial de-
partment of the several States to decide in the last ivsort upon
b11 constitutional questions arising in judgment; ami that this
has always t)oen maintained as a rightful exercise of authority,
and conclusive upon the whole State.' As auch, it has been
constantly approved by the people, and never withdrawn from
the courts by any amendment of their eonstitiitiou^, when the
people have been callH to revise tliem. We find that the people
of the aereral States have constantly relied npon this last judi-
cial appeal aa the bulwark of their Htate rights and iibfrties;
and that it is in perfect consonance with the whole stmctore of
the juriaprudence of the common law. Under such circuin-
stanc4?H is it not most natural to presume that the same rule was
intended to be applied to the Constitution of the United ii^Cates?
And niien we tind that the judicial department of the United
States is actually intrusted with a like ]>ower, is it »ot an Irre-
sistible presumption that it had the same object, and was to have
the same unireraally conclusive effeot ? Even under the «-OQfed-
oration, an inatniment framed with infinitely more jealousy and
defercneo for Stato rights, the judgments of the judicial depart*
mcnt appointed to decide controversies between >!tatc« were de-
clared to bo final and conclusive; and the appellate power in
> 8 HIlM-. Drhati^ S«8, SM, 8W. 8C5 i OrimWt SpMcl) in 1628, |^ SB. fte i
DiLM'a App. If H <^ P n to EH ; U. 14$. [>.<>.
CH. IV.]
PCIAL nttERPBETBB.
287
other cases Ta« held to ovomilo all State dociaioiM and State
legislation. '
$ 887. If, th«n, reasooinK from tlic termn of tho Comititution
and the known principien of our jiirisprudence, the appropriate
conclusion is that the judicial depKrtuient of the United Stateg
ia, in tbo last roaort, Uie final expositor of the Constitntion ta to
all quotttions of a judicial nature, let us ij««, in the next place,
how fur this rcaitoning acquires conlirnution from the past bis*
tory of the Constitution and the practice under it
§ 888. That thia view of the ('onntitution was taken hy its
framers and friends, and was fiubmitted to Uie people lK>fnre it«
adoption, is positively certain. The Federalist' says, "Under
the national government, treaties and articlea of treaties, as well
as the law of nations, will always i>o expounded in one seniie
and executed in the sarae manner; whereas adjudications on
the same points and qoestionn in thirteen States, or three or four
confederacies, will not always accord or be consistent; and that
as well from the variety of inde]>eudent courts and jiidjfos ap-
pointed by different and independent goremments as from the
different local laws, which may affect and influence them. The
wisdom of tlic convention in r^nnmitting 8uch questions to the
juriBdiction and judgment of courts appointed by, and responsi-
ble only to, one national government, cannot be too much com-
mended." Again, refcrrin}; tu thu objection taken, that the
government was national, and not a confederacy of surereign
States, and after stating that the jurisdiction of the national
government extended to certuiu enumerated objects only, and Icfl
the residue to the several States, it proceeds to say :* " It is true,
that in controversies between the two jurisdictions (State and
national) the tribtmal tefuch t« nltimaUlg to decide is to be es-
tablished unde^ tlie general government Bui this does not
chaoge tlio principle of the case. The decision is to be impar-
tially made according to tlie nile* of the Constitution, and all the
usual and most effectual precautions are taken to secure this im-
partiality. Some sueJ) tribunal is clearly essential to prevent on
appeal to the sword and a dissolution of the compact. And that
it ought to \k established under the general rather than under
t tUae'i Api'- 1 5S, TL M ; FVolullow k D«mm^ S Dill. 54 ; JMmMb of Omsftm,
1TT9, Vol. S, pp. goto 90 E i CViaeh, S.
288
CONSTITDTIOK OP THE UKITED STATIft. [UOOK lit.
the local f^veramcnts, or, to speak more properly, that it could
be safely entabliahed under the Bnt alone, ifi a potsition not likely
to be combuti-d. " *
§ 889. The subject is still more elaborately considered in an-
other number,' which treatii of the judicial department in rela-
tion to the extent of it« powers. It is there sAid, that there
ought always to be a conAtitulioiial method of giving efTieaey to
L constitutional provisions; that if there are such things as jioliti-
cal axioms, the propriety of the judicial department of a gov-
ernment being coestensiTe with itn legislature may be ranked
among the nuni)>er;' that the mere necesaity of uniformity in tbe|
interpretation of the national law decides the (piefitiou ; that
thirteen independent courts of final jurisdiction orcr the same
caunen is a bydra of government, from which nothing but contra-
diction and confusion can proceed; that controversies between
the nation and its memben can only be properly referred to the
national tribunal; that the peace of the whole ought not to be
left at the disposal irf a part; and that whatever practices may
wc a tendency to disturb the liarmouy of the States arc proper
objects of federal superintendence and control.*
1 8m alM n* F«d«n1Ut, K<k 33. * Hw P«dm1M, V«. «.
* ThaauiitnnuukiwiUbetouiidpnawilwithgiwt lorn liyllr. Chief JaitioeBliw
lOuU.in dctirfTing tlm Dpniaii ortbcoouit in Cohctu v. ViigitiM (SVTIm*!. Ml, 384).
* In cho F«)emlut, Koi. 7S ud SX tha «inc oounc of rwtmtnjt 1> finnwil, ud tlw
I AimI i»tu>« of tlio »fpMaU jvrUdiction of th« Saprtnit Conit to l*ilt*ly Ia*l)>t«l on.
LloUieciinvaDlioiiof ConiMOtiBut, Ur. RlUworth (>ri*rwaTi)*Ch{*r JmUm of Uie United
rBUUa) OKd tlie rollowing hogiuge : "Tliii Cuiiittilatiun drftnes itie extent «f lb*
Ipovcn or the (cnnei*] govvrnmNit. IT ths gruFnl Irgitktarr ibtniM »t an; tJMe cmr>
(Imp thMr limltf, the Judicial defiutinettt ii tli« coiirtitutional cbtclc If the llDitad
|Bt^«*gol>«youdIhdr pow*?*, — If the; make a lawwMch the Ooaitttatlan doM nut
r, it it void ; and tti« jiiJlckl power, tha nalional Ja>If«<^ kIk^ to aecwe tlirir
nptrtulily, are tn be moJo independtiit, a*!]} dutkn ii;rmd. On the oUkt hanJ, if
^Uie SUUt ito briruQd Ibt-'li limlta,— if ibrj make a iiv whkb ii a ttniqiatian upon Iht
l>D«iiJ pTnrnnrnt, the law in raid, and upright and indopendont Jn^gM vitl dorUi*
Still, kownvN, il Ihn UnittNl riutrx and (Im ladividual SUt«* will i)oaml. If thejr
|««nt to light, ihiff M*y do II, a»d m tnmt of fjorcrniMat oas peouUf pterant it."
I the debates in the 8oall>Can>{iiiaLqgi»lalure,,«lien tb« nilijeet ol MtUag a eonven.
I to latifj or njtci the CoeiMhatioa waa before tiicni, He CharlM Vioelauy (one «f
nhen of .the oonTaution | aTond the dooliina in the alrcaigiat lenu " That
I anrnna Federal J«ri*di«tloB;wBi iadlapMMUt," Mid h^ "cannot baihntod- lib
r«i{aal]r traa, Itet, b otder 10 beura tb« admiulitratiod <l Juaiioe, it ■» nuMaiy to
g)T« ell the ponr^ anginal a* well la appalbla, the CoiisUtution bu earanoMod.
Wllboiit it re cooM not eipe«t a due otamTanM of tmlio, that tb« State jndidsrioa
aid toallM thiMtdTM within tlieii ivopsr apbtn, at that a gniNal aiMt of Jiutka
CH. IT.]
prKAL IKTERPftRBB.
S89
§ :ii>0. T]ie same dnctrine vraa constantly arowcd in tlie State
Ronv«ntioii8 called to ratify the Constitution. With some persons
it formed a atrong objection to tlif Conatitution; with others it
was deemed vital to ita cxistonev and valu«,' So, that it is in-
disputable, that the Constituiiou was adopted under a full knowl-
ed|n) of this exposition of its grant of power to the judicial
department."
g 891. This 18 not all. The OonBtiliition hna now been in full
operation more than forty years; and during tliis period the Su*
preme Court hits constantly exercised this power of Rnal inter*
pretation in relation not only to Uie Constitution and laws of tho
Union, hut in relation to State acts and State constitutions and
laws, so fitr as they affected the Constitution and laws and trea-
ties of tJje United States.* (a) Their decisions upon these grave
would prrradc th* Union, if. That to iniUK thtar. cxteiujn outhontioi wgr* iwcm-
Mry ; p*rticiilijrly »> wire tliry in « tclhiinnl, L-nniiltulnl m thi* in, whnM ilaly It ooalil
tw, liul only to drtiili atl iiatiuuul iiUiwtiilri* wliich iihoiilJ iHm within thv iriilon, but
tiXDntral and kiwp (he State jiidiciuim wlthiu their ptvpar UmiU^ whenrvpr tbry^
iboiiitt attempt to intetftre with the [nwcr." Debotia in ITTS, print«d by A. E. lliller,
1831. C-h«r!niton, p. 7.
> It vtmild ticciipy tw KTOCh «!*<» toqaot* lb* fiw^M »t Iwg*. Tik« dn Inttasmh
in the Vii];lnk deWte*, Hr. HadiMo'* miMik* : ' It nmj he a miifortuiiiv that in iw>
ganuing any Kanrnmcnt th* toiplicatian of ita authority (honld b« lift la any oT tU
n».atdlnata tmnchn. Thar* 1* no rxamplo iR any unaitrj wh*ra It b otlivrwitc Thm
1« iMnvwpoUry In MbtaiitlBg It to tlia Judiciary of thcUBiml Statra." S Elliot '« Oe-
batM.3>0. 8Mal*ola.8aOb>e8,3»9,l<K>. 401.418. 8n alto North CkroUna D«bat«a,
8 EUtot'i Detmti^ tlS,ISr,lSS. 130. 133. ISt. ISf. Itl. Hi. 14S; PtHwylraaln D».
tetca. S Elliot'i Dehatea, ISO, 313. ilr. l.uthir Mania, io hU Itttir to tha UafylMid
Connnlian, aald : " By Ihn Ihlnl article tha Juillclal povar U TotUd In on* SapnuM
Court, ae. Thna Murti, and tlute onlf, wlU hava a ligtit to dKiik upon the lawa ot
III* UDitnl Statn aad oU TtiofiOR* arUiiuf tywn IMtir laiaJi urftwa, to. Whfiher,
theterorF, any lawa, Ac., of Congwra^ or ai;ta of ita Praddent, Ac., an contiary to or
wamntDd bj ibc l^nnlitulion, raoa only with the judgni, who aro ajipoiotod fcjr Oco-
grata (o ibtmniiia ; V iticm iMrmf aafiou tvery SlaU (m toundT S ElUofa IXtbatea^
44, (5 : Vatea'a Hiavtm. ke. 8n alao th« Fadmliat, No. 7S.
> Sm Mr. PiDckiwy'i Obicmitions cited in Griakj'a Sp«Mli in 18SS, pp. SB, S?.
■ Dane* App. J 41, pp. &3, 04, S^ ; Giimk^'i Speech, U», pp. M Io 42.
(a) In thi* dbmrfoM It ia pminnl, of
oonrw.that thaqoaitioai arimig under the
ConxllUtJan ha* In aoaw form boconw tha
anhjac* of Judicial cuntmrany, ao aa to bo
brooght lo the notin al ihe (OOTt in ■ maa-
wrtodBniand ilajndgmcnt. The court dots
not ait to dn-larc prtnclpUa of liw cxocpt
aa Ihny artM in actnit llUfadoo ; tl miut
VOL. I. — IS
hnva authority undrr thv law to adjuilioata
npon aoma auhject-mattOT ia i«ganl ta
whkk • Mfltravcny lua aiiata baloi* It b
wanutrd In Uylng down mla« which an
Io KOTvm any mt in tha eMMtradian of
the ConttilntiiMi or of asy other law. It
U, therrfera, ^nitc pootUa that qusKon*
«r toaatitaUona] law may for a long period
290
CON'STITCTIOK OP THE ONlrBD BTATE9. [BOOK HI.
qacslioDS have nerer been repiidiatcd or impaired hy Congress.*
No State baa ever delibenitelj or forcibly reaiiited tbe execution
of the judgments fouudcd upon thvm; and t])e bi^ht^l State
tribunals have, witb scarcclj^ a single cxccpticHi, acquiesced in
and, in most inBtuoccs, asuistvd in executing tbcnt.^ Durinf;
the same period, cloven StntcB huvo been admitted into tJie
Union, under a full pcrsufMiuu tbut the ftomo power would be ex-
erted over them. Mouy of the States have, at different timra
within the same pcriud, been called u|>on to consider nnd cxum-
ine (he grounds on which tbe doctrine has been maiutuined, at
the solicitation of otJier HtAtes, which felt that it opi-ratud in-
juriously, or might opernte injuriously, upon their interest*. A
t^eat majority of tbe States which hare been thus called upon in
■ la the dobatoa Jn the fint Congrea oisuiitcd under Iho Oonititntlon, th* :
doctrini vna opontjr ivownl, u iniUril it biu cniuUiitljr bam hj Um nkJoHtj of Con-
gma mt all auliMiiasiit inriod*. Sm I Uaji't DaUtat, SIB U S90 ; S Uoyd'a D*-
baUi^ 391 to S!7.
* Chi«f Ju«Ua»U*Ktw>. b Cotninonwolih «. Cobbctt (S Dall. (i3|, leciiuiohBTS
adopted » modified doctrine^ and to liars held thai tb* Supreme Court wu not tbe oeaa-
■nan arbiter ; hut if not, Ihci only mnndj wm, not by a &t*t« deciding for UioK, u In
rjuMi of a treaty b*lwr«n iadvpnidtDl gartwamentt, but by a cuiiHttuitlaiial MiuindowBt
by thr Stntw. But ner, on ti» otfanr ha»d, th« opiiiica of Chief Jtutka Spaaow, ia
Andnwi v. Montgnuerj; 10 JoJina. EL 114.
■WTtr ba brooRht tu th* a-iMe* of Uio mmrt
In a form to justify tli« exprewiou of ib
opinion ; and a pncticol «ni>lraction nay
ciimi) ta Iv unttlcd by the Bcttan of tha
■>ttirr ilninttiiii'iiU of (111' |[0Tar)tmH>t,
wblcb it would iMdlllii'iilt and iiilacbWroua
aft«wtlda to disturb. Indwd, ■■ Ilia
i»l^n*l jariklietian of the SapKoae Court
L* llinilril, and tha afipellatc i* by th*
ConiKtutiou Ncprcoly oonrMTfl, "with
tuL'h (ii;rplian» oad undar such ngulaliona
a« theCongmi dull pmoibe " (SxpaiU
VtJ^T. t VTilL M; Th« Lney, Id. SOT),
It hat bMn fannd poonblaby tlkat body. In
a ca*r in whMi a ibddM e« a quaUloa et
foiulitnllonal povar ma thoogtit not i^
•fttUe, and «h«r« Ma <)ac«ian eonld only
art** on apfual, to pM«faid« a dMialan by
takiag away tlia ap^Uata Jurlalletloa.
Thu wu done in UiH^nll*'a Oate. 7 Walt.
tot, after tbo apfcal had bnn taken ; tbe
fwatjon tnrolTnl being tha «OM«tItatioii>
allly of lh« RcaonitneUon Ada, aaoallad.
or thn proprkty of Boch action va tay
Mothinghera.
The fodctal eonHa kav* aim hdd that
tlMogh th«y insy compri the prttonKum
«l MCi« minbterial duties by an oSev of
the tinited Stalaa (Uarbory e. Uaduon, 1
Cnofh. 137 ; KewUU ir. raitod Statea, Ifl
Pet. SM ; Oaltad StalM c Oothritv 17
Hob. SSI), yat they Lire no power (q
iatecftn, t« leqaira Uie perfeinuvM of
ptrdy politju) dutiee, or to laatnin <a
ooDtRil tbe fncntlra jn Ilia oMMiM of dif
crationary powm. The allrgattoa tbat
be ia prooeading to put in fnm *a uacaa-
•dtntkoal taw do** not gin a court a
JniltdkllMi to bitarfofe. lIlMlaaippl v,
Jolimon, 4 Wall. 47S. Tha lam in <iaaa-
tka hata won ahn the SMMiUncliaii
Acta. $*• alM OMirgU m. Siantoa, 0
WalLSL a
nXAL INTERPRCTCB.
an
thoir Ivf^islatiro capacitivs to oxprt-ra opinioiu havfi maiDtaincd
the corrc«liKMis of the doctrine, uiitl tLv bviiuficittl effects of the
powor, as a bond of union, in U^nn» of t1i« n)0«t uneqiiivocjil
untura' Whenever nriy nmcHdmcrit has been ]ir(>po«ed toohangu
the tribunal and eubstittite another common umpire or interpre-
ter, it hiiH rarely rceeivcd the concurrence of more tlian two or
three States, an<i has been uniformly' rejected by a preot iiinjor-
ity, either silently or by an exjireujiltfiOt- And infltances have
occurred in which the legislature of the imme State hoR, at differ-
ent timen, avowed opposite opinions, approving at one time what
it had denied, or at least quentioncd, at another. So tliat it
may be aii«ert«l with entire confidence, that (or forty years tbrcc-
fourthfl of all the Stated c«mpoaing the Union have expressly
assented to or silently approved this construction of tlic Consti-
tution, and have rt-Hiitted every effort to rc-Ktrict or alter it. A
weight of public opinion among the [teoplo for ttuch a period,
uniformly thrown into one seRlo so strongly and so decisively,
in the midst of all the extruordiuary changes of parties, the
cvouts of peace and of war, and tbc trying conflicts of public
policy and Stale interests, is perhaps unexampled in the history
of all other free governments.' It affords as satisfactory a testi-
I
■ Hiaachiutrtu. in brr lUwlTe of Fobnuiiy 1SL ITM (p. ST|. in aiinria to tb*
Roulnliotti e< VirgjnUof ITUv ■1'^'*^ "tliu tkedcduon oT all ouea in biw imi
*^vi\f, aitilBR niKliT UiD OoMtlnnloii «f tlu Unitod 8ut«i,nnd l!w ranatnicllan of «U
Uw« in*i1* In puritakn«c thcmof, >n> utcliulTaly TMtnl by llie )<to[Jv lii IIkf Jndidil
OMut ot UiB Unilffl Suit* ; " >ii4 " lliat lh» pnopU In lliat itolcmii nniiart, which i«
iImIiii iI to he tbc nipmnB law of tlie UiiJ. haw not cunslitiitTil tlir Stat« Ipgi^lilum
Ibc iaigt* of tb« Oct! or mBMariM of llio I'tdcral {^rmniffit, but havr oon&dtA to
ibnn til* povw at proiMtng Midi ■mwidinwiti." Ae> ; nnd " Ibnt bf tUi eonitrucilon
of Ui* Contlitnikn an «nUlaUo and dlnpaatlaMto nmeiy i* p»ldl«d out for aiif vvU
vlikii MEptripooe tnay prov* (o litt, wiil th* [i«*MUid prMf-rily of th« I'nilcd Stata*
may bo praemd without Inlcmptkni." Sm alto l>iae'« Api<. J (1, |l SS g M. 60.
Mr. Wcbitf r'a Spcvch In the Smate, in 1636, coataina an admiraUa fipoutian of lb*
■ODO doctrlBtiL Wcbairr'* 8[»«rh«, «li\ 419. ISO, «SI. In Jane, Itti, tlx Honao
of RapraaratatlTn of X«w Ilunpuliln ptMod cerujn rtwIntloA) ( 1 n yma to 9 My*),
draw* tip (■■ fa tiadmtoad) by «atr of h«r Mott diaUnfntahoil 8tatNiD«i^ ataertiag th«
MDiNi iloctriiira. OtUwarf, in Juurr, 1S31. Mkd Connectieut and MMMehnaett* h«U
tiw maiT. in Mar. l$4t.
■ TirKlnia and Rtaitacky dpaicd tbapowrr In 17H and ISOO; M)ut«*chnMiU«^ Dvla.
van, Rhsd* UUnd, Krw York, ConMCttcnt, N*w B>BiriK>iir«, an<l Vrnuont dinjb
jmrtd «( tba TiixieU Riaolatbna, and pawtd OMntprmolutionB. (North Ancrkan
BavU*. Oetobw, 1 830, p. GOO). Ko othn Sutc apfeare to bT« Bpf««t«d the Vii]ginia
Baadntiona. (IMiI.) In ISIO I'fDiiBylTaaia propooed the qipointmcait of anotftcr tri*
banal tlma the Suprrme Court to deCcnnioe diapnlea bctwMC Um gmoal and Stat* («*•
OTSSTrrunox of the mnva> statzs. [book in.
monj- in favor of the just and safe o]H-riitioD of llic sygtoiii a* can
well be imagined; and, as a conunt-ntary upon tlie Conatitiitioii
itself, it is as absohitvl}- conclusirc «g any ever can be, and
affords tho only vscu[)e from the occtirrcnoe of civil conflicts,
aud tlic duUvcry over of tlic subject to interminable diBputev.'
f mment*. Tlrginla, en t1i«t occuioii, tfflnnod that the Sotnvmc Court wm tlio |iroptr
tribiuU ; uid in tLal vplnlrtn Vcw Haiii|i«lili«, Vtrniaiit, North C«roliiu, UatjUnd,
GcoiBM. TcuneBce, KFiituckj-, nuil N«w iem-y concum*! ; uid no on* Slal« ki>f««T«d
or the oDwndtnvnt (Kofth iniirican R«(icw. OftolKr, IMD, pp. £07 to S13 ; Dxii't
App. § ii. p. 67 ; 0 \^'bciil. H. Sii, note), Bcerutly, in Mmh, 1S31, Fniuaylruilk
hu Tsaalnil that ihv inh iwiiDn o( the jiiditiiiry act of 1>81I, «L. 20, uhich givn tlie
8npr«tnu Court Rpiirll.AU JnrUdktlon rrom State courti on conttitutionul quotioni, b
uutliuriziil by tlii.' C<ii»tltiiliuii *n<l 8iini;tl(iniul Vij (^xjinience, uiiJ tlio all other Uwi
ompowpring tliv Kisl«ril Judiciary [o ni»<Litiiiii tliu iiiipniinii law*.
> UpoD thu rabject the »pr«h of Mr. Welslcr in Ibo SciMtc^ in Itlt); prcanits the
who1« argumont tii a rtry cundrniM^d an4 poK-irfuI ftom. Tha followinn JxaMft* I*
adiKtod ta iwculiarly ipproprliitB ; "Th» itfoptc, Ihin, air, orrcUd tlib (COvminwnL
Tb«y giiTa it a Cooatitution. and in Ihul Cooitilutioa lliuy havn enuinerat«d tti« [mirtn
which thay bcxlcn* on it. Ilicy lun made it ■ limited gaTenunea^ Th»f ham da-
Bntd ila authority. Tboy have rwtimliMd it to tlu (XoriiM of inch farmtn m an
gnn1«d i and all nthcn, ikcj d«c]ar«, wo itMrrod to tha Statai <« tho pcovK Bat,
til, thoy hurt- not (topped here. It thvy had, th«y won]J h«v« Muonitdiahf^ hut lalf
thrir «Drk. No dcRcitiMi aui be aa clmr aa Co avoid poasitnlity ot doubt ; no limita-
tion M pnviw ai Ui exHndo all nnrartalntj. Who, than, thall oonalnia lUs RnittM
tiM |iKi)ik> I Wlio ttiiill iiiu-rprpl thiur vUl, wh«>ti It may bo iniijuaad tfcfy tiavo Ufl it
donbtTul 1 With nbnm du Ihry njxMe tliia utliinxtf light of deriding on the poBfni
«f tbc gotcmmcut I Sir, tliry have irlllcd all Ihis in the fuUatt muiMr. Ttuj hava
loft tt with thi! £ovcnini<?ut iiaclf, la its appropriate brandiM. Kr, tha verr ehitt end,
th« main dmiKn, for whkh the whok Canititntion vaafimmod and adofitnl, wai to ea>
tabliib a guvfnriuKUt Umt should not b« oUIkr) to avl tliroiigh Slate af^ucy, or lUpinil
on State ojiiniun nud Btate diiicr^linii. Tho jwople had had iiutle enon^ ct that kind
of xormmcnt uodir tlu confrduicy, Uo'ter that qratcn the legil action, tha appti-
catton of laiff to inJiTiduali, bcloot^ exeluArcly to tb* State*. Cnngna* omM onlj
Tecainmeud,— ihi'ir Bft« wera not of bbdioft faro* tUl tka Stale* had adopted aad Mue-
tioDcd tlirin. Are ■•■ in llwl condilicrii «till f An wo ytt at the mroy of State di»-
ctetiDa and Stale coaatradioii I Sir, if tm arc, ibcn rain will b* our attctnpt to
maintain the Conilltution under rhtck «d ait.
"But, tir, tlia i-itidrliavewlMlyinoviiliol, In theOmititatiM itaelfl a proper, raHo'
Mn Rioilc nnd tiiliiinnl for atltliaj; qwalioaa of eonatiliidimat Utr. Tbcfo aio, to tha
Canirtllutinn, fEniiiia .jf piiwtni to Oaogtca*, and n*lri(«lDna on lliM* powtrv Tbtn
aia, alao^ pivhibitloaa oo the Statoi. Some aulhoiily mnei. ihunfot*, nefwrtly wriil,
haHng tb« ultimate jariBdietioM to ix and uxntain ibr intctprTUtlMi of ihm gnntt,
notiictiapa, and jiR>hil4tiaBL Th« Couatitalioa ha* itarlf panted o«tt, ordained, and
wtabliahed that antboritv. How haalt acoomplbhed thiigraat andnBcnlialad 1 By
dcdarim, air, ibi ' tlu CtMUHiiUitn and iht bust vfVit VniUd Sbtr* tiuiJt m jmrmi-
amt Uiermf Atdt bt At »uiirx!H* iaiir c/ 11>t land, anylkini <i» tkt Catatiiutiau w U^atf
wif StaU lo Ikt emtrary mlaiilkiiaMJiitg'
"Thli air, «M tho Gnt gnat atcp. By thb (he aapfamaqr oT tb* COiMitiillon taA
CH. IV.]
nSAl, IXTEBPEETEH.
298
§ 892. In thin review of the power of the judicial departinont,
upon a queatiun of Ub eupromacy in the interpretation of the
law* of tha Dnltad SUIM b dMUrtd. Tlie iwopl# ao will it Xo Stain Uw U to be
iihA wlik'h eomm in ronlliut witL llin Coiiititution, oi aoy U« of the t'oiliv] Suiai
puuJ ia punuance «f it. But «bo >liaildiwidt tkiiqaoniDii of inlcrfereiicn I T«
whom lie* the hat «l>pnl r Thii, lir, the Coniitllatlan iMrlf lUcId**, ibo, 1^ declaring
' tKat tin jtdieial paaer AalltMfJtdteaU earn* arMnj tauUr Utr. ConMilKlim mnd lam
o/Uu VniM SUtet.' TluM two proviaiotui, air, oovn thv whole granniL Tbry ate, in
trath, tile key lion e of lUc areli, Willi th™c, it i> a Coniiiliition ; without thcni,it ii«
Mofcdencr- Jn punuuncc of thrw cl«r uid cijirH* {irnviiion*, Con)[n*i fataUiahed
■t ha vtrj Ant huioq, in tlir Judicial not, n motlc for cartTing theni into full nlTaet,
and for btinitinK all iiiitatidiii nf canatltiitloNal powfr U th* Snal <tMU(ai of tlw
Snprtue Conn, ll tluiu, air, Iwmiiir a KoviTiiriiMit. It th«n haJ lh« nmni of b«I^
ptoMttioo ; Bud bill for llm it noulil, in oil probutiilitT. liave bora now aniong Ihinpi
wkich an pait- Hiviiig comtituiisl ihr goTrmmcnt. and d«cl»rcd iti ponn, the pen-
pi* have Airther aniJ that niicp lomrbcidj niuirt ilccii]* on the eatnnt of thta* poutrii
tb* itovamniKiit xhall llnclf ili^iiilu ; «iil^rii-i, nlttHft, Uk« olhcr )io|>iiUr govtrnntenla,
U> Ua najwiiailiilily to th? jwnplv. Anil now, air, I rqicat. how ii it that a Slate hpi-
latura avquirm any power to intecferr 1 Who. or vbtt, give* them the right to aajr to
the pfoplo, ■ We, who are your BKenta and ■erranta fot one {nirpoae. will imdettalu to
dcelile tbat your other agrnta and aervnnia, appointed by you tot BUotlier purpoat, have
tiBBiandtil the aulbority j«n gave them f ' The reply would b*k I tliluli, not JnipvTtl-
amlt * Who mada yoa a Jud^anr«r uiotlivr's aervanlal To ILelr own niu>ti<r« thtj
MudorUL'
"Sir, I deny Ihia powvr of Stale lejtiiJatnmi alti^iFtlirT. lltannotitand tb« tut of
•rauninalioi. Gmtlenien may isy thnt, in aji exticine cuw. a State jtovcrnnnail mlj(ht
pivlMl tho fMopU tlptn laloli'mbl" uppr<->i«ion. liir. In anch a nun ilm [wiplv niiKht
protect theuaelres, willioul tlie aid of th* State goi-emmenla. !t<uh a ra*.' ■amula
rmtation. It must make, when it o>Ki««,alaw foritaeU. A nuUifying act of • Slate
lnliklMni iMhmil all«i llni laii. mil iinlii rtaiiMiicoaoy more UwfuL I* maintMiuDf
thiM atatiiiMiita, dr, I am bat aaaertinK the righia of the people. 1 (tat« what tlief
liavodacUrad, and iiitl«l ou tbtir right to dNloia it. They bar* cha*ni lo repo** Ihta
po**r in llw geneid govemuHuit, aad 1 Ihini: it my dot; to aapport It, tike otbar oni-
ftit«tiaaal power*.*'
8** alM 1 Wlbon'a Lav Tjaetttna, Wl. Mi, It » tmlr nupriBag that Ur. Tko-
Piwidenl Calhoun, In hia bttrr of the SSih of Aogiul, 183-i, to GoTonior lUnultoa
tpablitlMd whil* tlle pnaent work wax paning tliroiq^ tb* pr*Mi), aboold hav* tbooglkt
Ibat a pcopodtMO ■Kvalj offerrd in tfa« oonvenlion, and roforred t« a coMinlttM far
thdr eoaaUtraUon, tkat " tho jniudklion of the Supmn* Court ohall b* axlMdad lo
an (Mtrorenla* batwtM tha United Slate* aud bd individual State, or tha Uaital State*
aad tbedlixna ef *ti indivMual i<tal«" iJonma! of ConTentMU, 30tb Aug. p. SM),
aboald, ia connaction wilbotheraglTiuga n*it*tlT«on Stoto bwa,«alab)l*)i tli* eoadn.
rinn tlMt the aouTtnlian which rramtd the Conatitution waa ojifisaed to granting tb*
powtr to Iha gCMtal ffortnunont in any htm to exercia* any cwitrol wbaterer orer a
8ui* ht foroe, vcto^ or Jiullcbl proeew^ or In aaf otbar fann. Thi* danae for oral*^
ring j»rladlmlon em tile auprtaoe Cowt In contrawriiea betwaaa die Cnited Btataaand
th<>Stalei^ mut, like lbeoth«rToulivreralM batwata Stalra er betwMo indirldnali,
Trftrnd to tb* judicial povrtr, have btcn inl*iida>) to apply •avIntlTriy (OMiiliiof adWl
natare, reapeciiai; pnipertj, i^U. caitliB«t«, or otbcv clatuw by tho Culud Stata*
294
CONiiTITUTrOK OP TUK UNITED STATES. [BOOK 111.
Constihition, it has not been thought nooeBsarjr to rely on th«
deliberate judgmenta of that department in aSirmanc« of it But
it may be proper to add, tbat the judicial dcjuirtmont hiu not
only conntantlx oxerciKod this right uf intcqia-tution in the lost
resort, hot its whole oourso of nMwoningit and o)icralion« hna pro*
I cecdcd upon the ground that, once made, the iiitcrpretatioD vrt»
eoncluttivv, as nx-ll upon the States m the people. ■
I wgtinaX • Suia; tsd nnt b> ih* dcdilon «t OMUtttntuiiil qsMAioiu in the iMnMl. At
a (ubtMiOMt pvrtod iif tli6 onnTMttton, lb* jndld*! paarer «bi cxpivHl; cstcndod to all
euM uiaiag undtt ilia Cemtiliilim, Um», Mid fraotfet or Um tintud Suto, aad to tU
coulrornBioa to which the UuJtnl Sutn (binild fas a futj (Journal of ConrvulkJi,
STth Alts- P' IBS), tliiu coTcring Uw wliole gronnJ at a right U> <holil« toMtilotioaal
qocallann at a jiidieiitl Dituro. Anit thii. ai tlie Fadoralart infonuB tu, «aa tka Mibiti-
tulQ foranRptlwupon Suu luvi^ and the only wta whjnli wm iletmed ttto or effldntt.
Tlia FedCTBliat. Ko. 8Q.
1 Haitin VL Hitnter. 1 Wbrat. fl. 3M. tSt. Ac, *l% US i Cobtaa a. Tlia Sut« et
VJTKiniii, < VThMt. R. Se4. 9'i, 3*' to 3VS ; Id. <13 to 43S : Bank of Haniiltua *.
Dudlfy, S Pctnn, B. SS4; Wan v. llyllon, 3 Dall. 1»B. Tlw laOKBagii of Hr. Chut
Juatio* Maraha]l,tniUlivarin)(lh<>«iiit)lcHiof thccoait InColitait KVIr](lala)eWhaat.
' SSI to W>), piasNiU tha Bjgnm«ut In favM- of tlie Joritdiolion of llio judielaLilapart-
JDFnt In a ray roreibla raanntf. " Whit* weighing atgnnenta diswn Tram the Mian
d govtrrainvnt md from tlia ((cnenil >^Hl of an inMrunMol^ awl nrg«d fc* tlw pnpoM
' tf nanvwlng the oonrirnctiDn which the aonli of that intttaniMt smoi to feqalK^ h la
' proper to plaoe in the opixxile icale Uioao )inn<H|ilfe, diawa (ram the miae aoBreee^
rhUhgotonuilun tlw <ronk in their full oprtation and natnnl import. One of Aao,
irhlch fan* been pmscd vith great forro by ihecouaarlfor the pUallS) in error. b,lku
the judlelal povvr of Fvnry n<ll-coD*titDtfd goiemmanl nuut be ooeiteiutve attK the
IrgielatiTtv and mast be Apeble of deciding erary j«dkW ^UMllon vhUih powa <«t of
Ibo Conatltution and laws,
" ir aay prapedtleu may be conndoml aa a poUtiot] axioaa, Mm, m* thinlc, maj' be aa
' eonaMend. Id rraeontng upon it m an ibitraet ijuntioa, tbcea would pfobab^ «xlU
Iko oontnritty of opinion rt*i>Mllas It. F.vm- argument rmviag the neoeeelty of the
'flepattaient ;«or«a alao the proiirivly of giving ihle extent to It. Vadotut mean to
•Bytbat Ibe jariHlkttonofthe uourt* of the Union eliouH be conattiwd to be eowtewiira
with tha legjelatlrn. mcroly bcceuac It ii lit that it (bonldbeee; birt weBcantoMy,
' that thle filDeMfuml).hi'iaiiargiim*iit laconatnungtbeConetitntieawUakeiighlBMar
to 1m oT^rlonticil, mil wbi<;li l» iiid«1 mp««lally MtltJed to oooAidfiatiN when we aie
tniiiiiring wbttliri the worda of the inetrnnent which purport to Mtablilb lUl princi>
^ jiB diall be cc<itr»j;ted for the pnrpoee of destRiyiag ic
" Tlte mteefalcvonm eonwqnittcn of the eonatrtu-lion tonteeded far en the fait el
' Tlr^la ate elto ralltlnl to great ceoMMatlnn. It would fnaatTate, It haa bene leid,
ibegQertnnentaDdltiiUnBt ibelntorcreTj-StaUlntbrUniMi. A»dwoBUn«tlhla
fen it* tfiicl r What powCT of the gortenBmt mold be aceonlrd bjr ite owa Btani^ la
any Stote diipoeed to reeiat ita eaeontian by a eenoa of Itgielatiea f Tin Uwi nnut be
neniited by bidieiibHli acting witkla the ■creml Stetee. If thcee indiHJuaU isay be
CTpoeed to penalUot, a»d If the tottrto ef tha tTaJon ean»«t oonml the Jodgmrnte by
whxAi theee peoaltlM mny be eftfotced, tha oe«rae of the gorenmenl Buy bcv at aeij
RHaL IKTXRPBETra.
29S
ca. IT.]
§ 893. But it maj be ukod, as it Uiw boen ukcd, wbat is to
be the remedy, if there bo uiy miiiooiuitruction of the Constitu*
tim^ amBtnl b<r Uw rill at oiw of iu mMnbcn. E*cti menibtc will poMHM a Mto on
tbo will of the whole
"Tbo nniwor which liMbMiiiilmt la tUt ugummt <Iom not iho; ila truth, but
intiM* thkt cotiftdniM ia njKonl, uid may beMfeJf iv|kmo1, in iL« 8ut« liMlMiVM ;
ami liist, if llivjr (hall ever btoome ao Inane or to wicknl aa lu ank tha daatWKtlwi of
Uu govcninicot, the}' nay aocMnpluh thtdt ol^Mt by rtfiiaiiig to ptrfmn the fiioclioni
aanniMil to thctn.
" W* readily ooncnr with tb« muiual tat tha dolnubnt In cht dwiarmtlon that tha
MM*, mMeii hare b«n poti or<Urmil IrginlalirB miilaiiot, fur the pur)<aa« of oppoaiag
Uw aoknowled^ powvtt ot the gotemiUBnt. air tslntat caioa. aiid in tfaa hop* that '
tliiejr will never OMur ; but wa <Minot help Ixlicnii)! thai a gcmnal convictioa of tha i
total incajiaclt; ei tlis gorvroineiit to protacl ItmU and iU lav* in lueh caaca would
eoatritwto iu no inooiuidtnUo dtpaa to ihali oocumai'aL
"Lot it be admitted that the caica which hare been pui aR«itrttn« and improbabbv
ytt tfatK «ie fradatioiu of appadlian to tli« lawi. tin ahort of thiMi oaao, which miKht
haT« a haotfal inilnenoa on t)i» alTaini nf th« nation. Ditfamt Btataa may tatntain
iffiinnt opialou an tha tnio omalrauiioti uf ilia cuualltuUoiul |nw«nof Cengnaa. Wa
know that at 004 time theasaumpliauor theilublauanlmiliilby tlieasrvralStataadnr*
ing the war of out Berolution wu dwmnl uncomtitntional by aome «i thno. Wa
Icnow, too, that at other tbnca certain taxea impwed by Codkto* have betm fcononncod
unraatiitotiowtj. Olh(i'ia>(havaliaani|nnitliin«d[>aitiilly, while Ihoy ncniuppxitad
bj thr grtal majority of the Aiucticaii jmiiltt. We har* no aMuntuca that hv aliall ba
lata dividni than ws hare been. SUtM iDay Icgiilate in confomiily to their opiuiani^
and may enforce thoat opinlona hf pcnalliea. It would be hnardiag too ranch to amatt
thai tha J^dkainra* of tlw fitataa will b« axampl from tti* [aajudicaa by which thu Irgia.
lattnaand paot>laar( iBfliMnM^, audwiUcMUtiMtOIWftctly ini|«r(lal tritmndii. In
maay fltaira tho jndf^ arr dependeitt for oBlM and lor aaUiy «i itiu otll of iliv Ivgiila-
tora^The Conititution al the United State* funiitfaca no •Bcurity nf^init the uDivrnuI
adoptloB of thia priii«i|ila. Wkm wa ofaaorro tha Impoftanoe whtcli tliat Conalitutinn
altochae to tha ind<{<eiid#UM of Judga)^ wa aia tha laaa Inclined tfr aujipoaa thHt It van
liave intended to leave thtwa conaliUational qucatioii* to tribnnaK wliei* thia iiutBiion-
denoe may not eitit, iu all mk* where a SUte ahali proiMuta ao iudiridual who i^laim*
tha protection of an art ot Can){ra(&, TbcK [iriaKUiiona may take plane eris withoirt
a l«giaUti«'a act A jvraonmaklngaaeiinrDiin-lcfan act of CongrMimaybeiDdicled
*• a IrMjiaacr it tone tiiw I<wii einployi<d. and of Ihl* a Jury mqr jviigt. How anco.
aire may be the misvliivf if the fint deoialon in tueh caaaa ahouhl be flnal I
"TWae eollinona may take phoe ia timoa of ao Mttaafdinaty ocoimatioft. Bot a
oonititution la fnmed for agea to oeom^ and k> deeignad M Bjipraadi intmortatity. a*
nearly aa human Inttltutloni eaa appnadi It. ItaeoaoMeaniiot ■IwayibalmnijulL It
tt Mpeatd li> atonn* Mid lem|iMla, and Ita framm mnU be nniriin itaUawen Indeed, if
iheyhare not prorided it, at far aa ita nature oill permit, withUunaeanaaltrit-praaar- .
vatteai bona the prtil* it may be dntiaed to FooMinlar. No govnnmcvt ooghl to be ao
dcbcttra is Ita OTBaniaatian aa not to oonUiu within ilaelf tiM means cf lecwiic tha
•MtMion of Ila own lawi affhiat nihrr lUncrw than thoa* which oocor aireiy day.
Ooartaof Jnatka amtlieneanamaniiiuallyemploynl : and It la mawmabla to expect
that a govemmnit ahtnld irpoa* on ila own couria rather than on otlfta. ThM* la
ocrtninly nothing in the cinnunatoKaa noder which out CaaMinUaii wa* (oroed. notif
COKSTITCTIOK OP THE ITNITED STATES. [BOOK HI.
tion OD the part of the gorornment of the United States or Ha
functionarieH, and tmy power exercieod by them not warntnted
ing in ^t iattotf of lli* tinMi, «hkl> wonlcl Jnatliy tb« opinion, tlmt th* ronOdraec n-
ftmd in t)i« Statra wm m Unplkil at Ut Imtm la Uiem and thnir ttilnmalH lliv ponrof
[Iwivting or il«(i»tiug, in ttn> form of law, tlie hgitiiuala mMnma of llin Uniun. Tbc
rDqiuMtiiini of Congni^ under tho cosrcdcntiou, wwicMMnstitutioiiulirobligKtMyw
tl>« \»Tn cnai?Ini b; the prcMnl CongroB. ThU ihq; vm hBluuially Jurtipinlcd, ii a
bot «f uninnnl ooterirtjr. Willi Ihu knoxladftncf ttitt fact, and uudn lU MI imauuni,
a conrtniioiL iraa uaeuiblni to cliaiig* tli>> «7Vl«ta. la II «4 iiujinibablv that lli*y ahouJd
confer on the judicial dcpaitmt'ut liie ixivar of Moatruiag tiu Connlitnliou and lairi of
the IJnioii in every cuo, iu the lut trurt. and of pmcTring them frgui all rioUtion
fioni tvntj iiiiartT, *o far oa Judicial deciaiona taa iiimiwi thorn, Ihnl Ihia iDifonbtUl-
St;r hIiuuM (WKXTilliilly alErctth* conttmctifm of tha nm> ajMani r Wn am told, and m
are Irtdy told, thnt lh« gnat «hMi)^ vrbU-ll ia to )[irritllic*cy tulbepreaBuli^tMa lalU
abUity to act on indtviduuU dir«rtlf, insUad of acting through tb« inatruniratalily of
Statu itoi-iiminenla. But angbt not thU abdlity, in fcwon uid BOnnd policy, to be applied
dlm;lly to lb* praUciion of Indirldnala rmployed in the cxemtioD of the Uwi^ ai mil
■ ta to their oo«niion t Your Uwt n»i:\ tiia tudivldiial withcml tlir uid at any otb«r
power ; why may tbey not pralent hiiu frou puaUinuful fur pertomiing hu duly In
axccnlin^ them t
" Tha oonoarl for Vlrfjlnhi tndoiTor to obrlaU the forco of thc« argument* by «y-
tag thai tbr daugm* tlif; niggMI, tf not Imafcf nary, arn Invvitahlii ; tlint Uu Ceniititu-
tion can make no proTinioii a^inst tbein ; iitjd tliitt. tlipreforr, i>oonittniingtliat inatn-
mout. they ought to be excluded ftnmuiir con liJriu lion. Tfaiactateof tbin^i, tbsy My.
rcanuot aria« until th«ra ahall W a diapoi'itinn to huiUle to tk* F«««mt politkal q«tna
M lApruducsu dtitfrrtil nation todialruy it ; u»d whvu thatdMarBimtiod thall bo ptD-
duced. its elFectn will not ht nairainMl by iMrchinant Btiinitattana. The faU of the Ccai>
atitution will not then deptnJ on jodieial deciaioni. But, ahonlit no appeal ha made
to furce, the Slatoa can put an end to the govennnint by r«huing la »el. Tbay liavo
only not to ohct fmnat^r*, and It ixt^it* without « alm^U.
"It is very true that, Hli(<u«rtr limlility to theexiatingiTVtna aUt btOMH nairvr'
m1. it will be sloo irnautiblo. The people made the Covutttntion, and the pniTde can
y unmake it. It la Ibe enatnn of their will, and lirea o«lj by ibtir will, list ikl*
•npr«roe and IrrealaUbla power to niak* or to onniakc, rtaidaa only in tbt whela bedy of
th« pmple, not In any mbdlTMon of them. Th* attempt of any of tha part* to axw-
tiic it it uiurpatioD, and ought to bt Tt|wUed.by IIwm to whom the (Miple h>t« dele-
gated their power of rrpelting it,
"The nek nonledKtd inability «f Iha gonmumt, than, toaniulB Itmlf a^uiiM the
public will, and, by foroa or otharwlie^ to eootral Ibe whofo natle*, b DO aonnd aign-
niitnt In aiip[Hirt of it« constitutional inability to pnaarre Itielf agalnUaaection of Um
natiun acting la opf4tntioa to the graeral wiU.
" It la ttne, that if all the Stain, or a minority of them, rehuo to doct nnatom. Ilia
rltgiaUtire powna of the tTnion will bruapondrd. But if any on* State aha U rrfuaa lo
ilect them, tbe S(«utc will not on that acoonnt br ibe kaa capahio of pwformiaf all ila
'' haetloai. The argumuil fonaidnl on tida fact would awan mlbw to pnita the aalairdi-
BBtieo «f tha parta to the wboli^ than the nnpleta ImUfwntlcnoa of any one of thas.
tnmvn of Um CoMtilAlioa were, inifaad. iwahia to aialn any pforiiiMn wkioh
hodld piotect Ihat iwtnmNat agauut a itcaanl wsbinatloa «f the Stuca, or of llw
pl(^ for Ht dMtniotioa i aad, eooaekn* cl Ihi* faubUity, they turn not tnade the
CH. IT.]
FINAL INTERPRETER.
207
})}• iu tnic meaning? To tliis qtiostiun a general anawer may bo
given ill the words of its early expositors: "The same a« if the
State legislatures should violate their respective constitutional
authorities." In the first instance, if this should l)c by Con-
gress, '*the success of tlic usurpation will df|)end on the execu-
11^*6 and judiciary departDoenta, which are to expotind and give
ctTect to till? legislative acta; and, in tJio loat resort, » i-emedy
niuat be olitained from the |ico]iIe, who can, by the election of
more faithful representatives, annul the acta of the usurpeni.
The truth in, tliat this ultimate rmlrpss mar ho more confided
in a^inst unconstitutional nets of thn federal than of the State
tegialaturcs, for this plain reason, that, as every act of the
former will be an invasion of tlie riphts of the lattor, tlipse will
ever be ready to mark the innovation, to sound the alarm to the
people, and to exert their local influence in offectinR a change of
federal rcprcHCiitatives. There being no such intortnediute ImmIv
between the .State legislatures and the people, Intei-ested in
watching the conduct of the former, violations of the Slate con-
stitution are more likely to remain unnoticed and unredressed."'
§ 894. In the next place, if the nsuqmtion should be by the
Pre«ident, an adequate check may be generally found, not only
in the elective franchise, but also in the controlling power of
Congreaa, in its legislative or impeaching capacity, and in an
I appeal to the jitdieial department En the next placa if the
iQSurpatEon sltould be by the judiciary, and arise from corrupt
Imotivcs, tlio power of impeachment would remove the offenders;
I and in nuist other caaes the legislative and executive authorities
eonid inter]Mme an efficient barrier. A declaratory or prtdiibit-
ory law would, in many cojicSs bo a complete romwly. Wo have,
also, so far at leaat as a conacientious sciihu of the obligations of
' duty, sanctioned by an oath of oflice, and an indissoluble respon-
sibility- to the {Myopic for the exercise and abuse of power, ou the
part t^ different departments of the government, can influt^uce
■tUniit. But tbrf vete able lo proviiU (gkliiat Ihs npnalloD of dmmuim ulopbiit !■
taj MU Sutc, wbfWD («ndtn(7 might be to Bintt tlie txanilioa of ttir \tn. mJ tU* it
WM tb* |ai1 of tmn wUdoiu lo Ktttnpt. Wc thin); Ibex Imvv altfniitcd it."
8m alu M'Callocfa r. Utrylud. 4 WheU. SItt. 40S, I0«. Soo aUo the rauoninf uf
Mr. Cliier Jsuice Jiy, In Chidtolm ><. Oi-Offiit, t MM. 41> t ihhon w. Huh of Uie
L'Bitr.! StatM. 9 Wheat. T3S. 918. 819 ; an-l Gibbon* i^ 0«deii, t Wbnt I. 81ft.
t Tbt F<da«li«t, Ka, II ; 1 Wibou'* La« Lwtnrw, MI, US ; Dww't App- 1 M>
^5a.
S98
CONSTITtmOX OP THE UNITED STATES. [BOOK in.
humnn minds, Horae additional guards agaiiut known and dolib-
ernte luiurpationa ; for both are provided for in tlie Constitution
itaelf. "The wisdon] and th*; dieicrelion of OoDgreSR," it hna
bc«n juBtly obsen-<Ml, ** their identity w'Ah tho people, and the in-
fliience wbicli thvir cunatitueuts possess at elections, are, in this,
88 in many uthiir iuatuiicfs, — as, for example, that of declar-
ini! war, — the »olc n^slruints; on this they have relied toaecure
them from abuse. They are the resttrainla on irhich the pcoplo
mufll often aoltfly rely in all representatiye government*. "•
§ 8l).>. But in the npxt place (and it is that which would fur-
nish a, ease of most difficulty and danger, (hough it may fairly bo
presumed to be of rare nccurrence), if the legislatire, executive,
and jadicial departments should concur in a grasa'usiirpntion,
there is still u ijeaecable remedy provided by the Constitution.
It is bjktlic power of amondmont, which may always bv applied
at the will uf threc-fourtliK of the iiitates. If, therefore, there
should be a corrupt €o-operatiou of thn-e-fourths of the Htwtes for
permanent usurpation (a ca»e not to be Kuppused, or if su]iposcd,
it differv nut at all in priueiple or redress from the ejise of a
majority of a 8tat« or nation having the tunno intent), tbe cuso
is certainly irremediable under any known fonos of the Conati-
tutiou. Hie States may now, by a oonslitutiotml amendment,
with few limitations diniige the u'&ole structure and powers of
the government, and thus legalize any present e-xceas of power.
And the general right of a society in other cases to cbangv the
government at the will of a majority of the whole pcuplo, in any
manner tliat may suit its pleasure is undisputed, and »ecuis in-
disputable. If there be any remedy at all for the minority in
Buch cases, it is a remedy never provided for )>y human instito*
tiona. It is by a resort to the ultimate right of all human l>eing«
in extreme cases to reaiat opprosaioit, and to apply force against
ruinoua injustice,*
§ 396. As a Bt conclusion to this part of these commentaries,
we cannot do better than to refer to a confinnatory view which
has been recently presented to the public by one of the (ramvrs
> Gtl>b)M p. Ogdon, t WliMt. R. I, 197. 8«a ■!•(■. on Um inna nibjoct, tlia oteer-
vntwm «l Mr. JiMke Jotiiwan In dollTMing tli* oftofon of tb« eoun, in Andtnon ».
IhuiD. S Wlini. R. SOI. -iM.
* Sm WslMUr'* ii|>MdiM, fip. 409. W> i I BUab. Camm. ISl, 1«S. 8m tbo t TMk*
eft Bkek. Oontm. Apt*. 73 t« 76.
CH, IT.]
nSlL tNTKSPBFTBB.
S90
of the Constitution, who U now, it U belicTod, the only flar\'iv<
ing nieiiibor of tlic federal convcution, and who by his early aa
well 08 his later khors, has entitled himself to tho gratitude of
his coimtrj' as one of its truest |>ntriots and mo«t cnlif^iteuud
friends. V'encrnble, as he now is, from age and charactvr, and
absolved from all thotie political connections which ma; influence
the judgment and mislead the miiul, he speaks from his retire-
ment in a voice which cannot bo disregarded, when it instrscta-j
iia by its profound reasoning, or admonicihes us of our dangers bj
its searching appeals, llowerer particular passages may aeem
open to uriticisni, tho general structure of the argument stands
on immovable fuundulions, and can scarcely perish but with tho
Constitution which it seeks to uphold.'
> BefcMBU u fam nuk to Mr. Hullton'* LaUtr, i»M AnglUt, 1S30, to Mt.
wuil EvHvlt, [Hiblbhad la tht North Anwrioui Bevlvir for Ocloti«r, USO. Tke kH^^
loaing extract ii l«l:en rram p. Ml H acf . : -~
" In ordt* to uadonrtnad tho Into chwxtBr of th» Comtitntfaai of tlio Dnitod StMM,
tha enor, not imoaronioii, mnit bo arokded of viatrjnj; It throuf h cbt ntdiun •illwr <
• ooiuotlilMwd Ronmnivnt oi of > coi>r«l>nittid gownmoDt, wlillM tt b neitbtr IIm i
nor tht ollicv, but > oiiitun uf botti. Anil liBTinft in no uodel, th* nnuUtuilM i
andogiM applioablo to otbcr sjndcmii of goirernmrnt, h moat, inara than any othar, to '
iU onii Intcrpretar aeoonilDfi to it* itxt uui ttu fiutiaf tkt auc
" Fiom tliMe tt will bf tr«a tlwt tbwcb>racl«ri*tic poculiaritlataf tin CDnatitnUon t
I, Uk nwle of it* fotmatioii ; S. tlie iliriitiou of Ui« rapreino poirtn of gortmnwnt 1
tWTwb thr SMa in tbHr unildl upacity miii th« BUtea in tlicir individual capacitia
" 1, ll waa fuTtiud, not by the gavcmniinit of tho oompoiMit Slataa, aa the Foder
gprwMptBt for vlik'h it waa aalwtitiitnl whn fnrmiHl. Nor v^x it tiimind b; a majoril;
of the peopis of the Uiiitad Ststoa, aa a itiiiglv uonimunily, in Ilia nianaM' of a oonaol&j
dat(0 goircnuaoiit.
" It «ai fMtned by Iha Statai^ that ia, by tlia pcoplo in (ach of tho Statat, acting is ,
thdr lM||h«*l *ovai«ign <spH;it7 ; and tumiad conatniuontly bjr Iho aanio aathorilj whid
fomad tho iJUta DMittitutiona.
" Baing thna dcriTcj froon tho aaoie nonraa aa Uw countitotiona of thr Slats, it baa
vlthln Mch Stata the aiina aatbarityai At oonstttntion of the Stato ; and ii ai mitcti •
conalttulion. bi tha atrlcl aann of tha ttnn, «ftliin ita pitMilbed tfdieta, aa tho conatitu*
tionaof tho tilalM an* within ihtdr i«a|iaotiTt *|iliotaa ; liul with Ihiaobriona and aaaaorj
tial iliOcrEnoc, Hal, triwg tt tmyaU ammg lit SMtt n tktir JiigJUM anatr*^ >
aad ooMtitating tha pBOplothtnolono people for «nain purpoaca, ll'taanot bat
ear annnllad at tho will at tha 8tataa Indlvidnally, a* tho conatiuitioa of a Slata m^ 1
atlMtiulivMiial oill.
"3. And that iidindaatbaaBpcamapawaraofgoTaniaaMtbatwaanlhoi
of Iba Vmttl Staica aad tlM gmwaanenU of the iadividual Stataa, ia auapFd tat i
liuaof tba Iwatrwnnwt; tbapowaniof war aadoflaxatian, of oommaKe and of tr
and otb«r tnaawtatcd powcM *««tod In tho gOTcniment of tha tTnitrd Stntn bail
of aa hLicb and aoTirrtl^ a character aa any of tho powen mervod to tho State
gwraminonta.
800
CONSTITDTION OP TBE HKITED STATES. [BOOK ITt.
" Nor ti the govcniincnt of the Uniltd Statnv cmt^ bj th« ConaUtalUnt, In* *
gOTrmniFnt in ttie attict trnae cf tlie tmn. uithm Uio tfbcn of iu powBR, tiiui tb«
jOTcruiiiunU cnaleil by the oonititutioai of lh« Statu »rt nithin their wrcrml ^hett*.
It iA, lik« Uinn, «r]pi>i>Ml InU UglnUllTv, •itciillvr^ •nd Judiclitry ilopartintntji. It
j^optrato, like th«in, din«tl]r oii penotuand Uiing«i Auil.likathem, UhMateommMxl
k phyrical hnx tor cMoating the po'avn tmnmittnl to it. The oonranent vpctitka \a
Jn CUM la onn of the fcntun* touldng the pcvuliaritj of the ayitcm.
" Bstuvm Ihme ililR^rviit uniiHlltullona] ipivmiiueDt*, — At un* operating in all tke
•tte, lh«olheno;ientiiigMfKntely inMvh. witli tha*ggr>g>tci>o»vnaf fcovM^iivnt
[Mded brtwna tbim, — itcoolil not «ao»pe attention that contnxnniea would ■»>• toft-
ling tha bonDiWiu ot juriadUtian, and that aont provudon ougjUt to b« made foe
fneh ofleiirT*ni:'i's. A pnUlioal ayiit4tni that doca not proiide for a peaceable attd anllior^
itatiT»tf<rniinationot(iccuniig><iontraT«nlM would not b« mora tlian the aWIowof a
gotnniuvnt ; the olg'Kri and and of a real govenuDBUt b*bg the aubatllulioD o1 h«
and order tot unrertaint;, oomfnnon, and Tialenve.
"That to ha*e left a flnal dodiioo, in nich caaet, tocaehoftheStatd^ then thtcteon
andalrandj twenly-foiir. could not fail tauako theConatttutianandlmof tlMDbiied
1 6latoa d ilbrrnt in dilTcnnt 8lal«*, wa* obvlooa ; and not laaa obvioua, ibat thla dlrmlly
' indeiirudont dedsiooa muat altogellier diitraot tlie ggsreriinienl ot the Uulcu, and
lily |nil an end to the Union ttHlf. A usifonn autbarity of the 1am u in itadf a
Ital princtplo. Some of the tnoat important Ian oonld not be pattioliy executed.
hoy niURt b* asMutod In all tb* Statai, or thay oonhj be duly urcuted in none. All
n|intl or an exoif«, tor exaiapte, if not In fait* in tuiue Btaln, would be defeotod tn
elbvni. It ii mill Iciiawn Hint thi* waa auioiig the liuton* of exprttoaeo which liait «
riuiary inOueuce in bringing aboul the existing CoDMitatlion. A loa of it> pneral
nthority iroiild morDorer iwira tha axupratinff qncitioaa bottrem thaStata holding
Ipoita for foi*l|n commem and tha o^ioitiiiiu StnU* wltbont Ihani ; to wlikti at* n«»
ilad all tha inland SlaU^ nacawarlly cairying on their foivign oommnoe through
r-otber Stats.
" To have made tho ilnriiioni under the authority of the iDdivUiul StBtMco.«tdlnBta
in all «a«i*i with d>wi*ioiia under ihr nnlhoiiy of Iha UnilMl etalM, would niWTeidaUy
produce cull i Kleins itiiMtii|«Ilt>lr with IhepMoaof aociely, and oitk that ngataraBdofll-
eieuC adiuiiiistratiuii which in of lh« «nenoa of he* goTemment*. SoeoM oonM not be
■voided in which I miiiiiteTial olUuer of the United Slate* and the eormpoiiiiwt oSeer
of an individual Stale would have renoonntor* In aioentii^ eo«IUelln|t ilterMa, tho
IVHiilt ot wliich would deiwnd on the oompwatln Chm of the toeal p»*«t» attenilinK
them, uud thut a cooualty d«iwndiug on the political ofiiaioM and party feelings in
diiTert'Ot 8tut«,
"To have referred over; elonhinff dodiloo, andtr the two aOthoritU*, fnra&nal d^
diion to the Slalm oi i-irlte* i» the Contlitnlion, woolil be aU-niM witb drUy^ with
inconveiiiener*. and with •'■[■•iisra amounting to a jirohibitiou of the (>i|»di«nt ; not to
menliAn Ita tendency to im|wir lh« lalataiy reneralioQ far a ayalem R(|niring audi he-
qeeiit Interpuailion*^ noe the dcUoate qiHitlona which mi|^t {weanit themadws ai to
Uh totm <t ilaliBf the appMl. and ai to the quoram for deciding IL
"To hare traited to atgotlatkm lora^juXlng dli^ulaa baiwMn the govaramant iif
the United States asd tha State goemiiMala^ m bMwM« indtpekdonl aad aeparala nt-
ereignliei, would have kat algbl altoittthtr at a oonaHtution and goemmntt for the
Uuion, and npanad a direct road froana hilureof thatiaaorttotbetiMmiira^iIehttwcai
natiMit vliolty iiid«(«ndrat of and alwn la ach othtr. If the ids bad tb orlgia in
the proceM of adjuslaoent between *Fpant« btaaebM of the Mm* gorenunwt, tlio anal'
en. IT.}
FINAL INTER PRETBB.
801
ogr cktinly failt. Id ibe cue «f ditpuW Wtw«en indepondcnt pntt or th* ttme gov-
•mmcnt, ncltk«r pit bciiaj{«b1elocgiuaiiUDatcita will, nor the Rnvprnmrait tognooHd
iritbcvt > concitrTMic* ot th« parU, nocoally biiug* A\«iiit un iii.'ciiiiiiiiwlaliou. lo >U»>
pDtM tnliktfii B 8UU gDTaramfttt »nil Iha govvmnitnl ot th« L'uited Stxtn, lb* c*M
i* pnolicnUy lu w«Jl ■> tliaoivticiilly iliffi-reiit ; each party |xMBnsing all tfaf depart*
lucntu of nn organieod gonmniFUt, le^lativr, eitcutivc. and judidary, and having
each a phyii«nl force to auppovt ita prplcnijoni. AltboDgh tb> Ihuc at acgoUatioa
nilj[hl noinctlmta avoid tliui axti«iiiit;r, how often wniild it hapfwn amonR no mnnfi
Suir^H, that an untcooniniMlatinfl aplrlt In lonm «uutd ranilvt that tMOurcti uiiaTallliig t
A contrary tupiKnitioLi OQuld nal accord with a knowMgCor haman uaturc ur tlia
(jvidvuce of our DKU )>olitiFiil hittory.
"The Connlitution. uol relying on any of the prrcnlinH modlfli-atloiK for Ita ntcand
■Qccruftil i>|>iTrHlii>ii, hiu* vxprastly dfcland, on th««iM hand, 1, 'that IhaCoiiMitullaaJ
and th^ lawM m-.t'lv iu pursaaiiO)) IhetMf.aud all tti>ti«i made uad«rtheialhorflynrib«^
United Stntcs. utiall br tilt' tuprame law ot the Uad ; 9, that tlir jiidgri of mry 9tat«
ahall be boDud thcrpby, nnything in the MiuitltntJon and lawa of uiy Slate to the con-
tniTy not aril liaundin)! ; 3, thntthnjadlrial jionrofthc ITnlttHi Stulea ihnll txteJid tooHj
tmet in bir and (i^iijtj arMng utidrr th* CoQ«litatloD, tho la»s of th< United StatM^
and Ireatin iriudc nniln' thvLr aulburily,' lie.
"On thr other band, aaaieciirityof tho riKhtaand pawenoftlieSUt*^ ii)th«rindi>
*lidual cMpadliei, ii|[aiiiiit an undue prcpondenuiRoof tha pov«ni fpunltd toth* Eoveraaj
mmt «Ttr th#iii tii thi^lr iiiiil*<l ctpacliy, th« ConMitutlon ka* ivliod on, 1, lh« i
nhility of the iFDalon and rrpm«utaliirca In Iha 1«gislatutv Of tho Untied StaUa to thsl
k^aturoand people of the Btatn ; S, the mpondbititjof the Pnildtrnt to the |
of Iha I^Bitad fltatca ; and, S. the liability of ih* oxMativB and jadidal fiuKrlian
of tbeUnit«l8tMlMlolnii>rx<.'bm«nt by therrpmratatiTMor thep««ple«f UwStUtm
in aD« bruieh of tlio legialature of the Unitnl S(al«^ and trial by the rqimtolatitw of
ifce Slatei in the other brunch : the SUte ftnctionitriai, logialatlre, executiTc^ and judi>i
dal, b*tng at th* Mmc time, in their appointnMoit and rMpotittblUty, altogatkcr joda- j
ptniltnt of th* apDcy or *uthority of tiM Uoijad SUtta.
" Hov tu tliU Mnotiira of the gorminient of Ibe tTnitol Statn Ii adequate and tab \
tut ita objaeta, time alone can ahiolutcly detemuM. Experience leFnu to hare iihown,
tint vhalam may grow out of fntnie Uagt* of ear national arrci, thct* io. u ycU ft .
aaBtcieot ooiitnl fa the popnliir «-ill, orrr th* aieentlTa and Icgblatlve dapartownla i
tbegOTfrnnent. When the alimanil aadilion lanverepamfd, inconttnTentlon tot
opnko* and (mUnga of the connmnit;, the fint thclions that cDsut^ put an «nd t»l
tfaiai. And whAlcTer may hara betn tho ehanettr of othar aeti^ In tha Judgment of ~
RMUr e( ua, ft ti bill lni« that lli^y h>T« gmmlif aoeonlad with tbo nam of tha ma*
)adl]r of the StatM ud </ the prople. At the prewnt day it M«ma well andcrilood that .
the Uw« whkli ban ereatnl rooM diBitufactka bare bad a like miction without doon { 1
and tbit, wb«(ber »nlinu«d, varied, or rrpcolfd, a like proof will be genu of the lyH'J
pathy and rarponaiMlit y of tha i«i>itemitatlTa body to tha conttitaant body. Ibdaad. tht'
gnat MnpJalai now b, afjaluM tbe mult* of ihia sympathy and MpondUUty is tha
Itfftlattre policy of the natloa.
"With respett to the judicial power of th* tTnfied Statoa, and the oathority of tha I
8«pmne Court fo nlation to the bMindary of Juriidlcllnn b«tw«an Ih* Fedtnl and thl
State KorenimcDta, Imty b« pannltt«d torefrr totb* tbirly-nintbottabccrof tbaFederviJ
albl for the liithl in wbiih lb* euljtctirM ngatdrd by iti writer at the period when thO
Oonatltulion wm depniding ; and it b brliered that tbe mbo wm tbe premiiliiig view
then taken of It, that tbe Mine rbw ha* «o«tiaiicd to prevail, and that it dote to at
tU* dncy notwithManiting th* MtisaBt uuapikiia to It.
S02
coNBTrnmoM or the united states. [book m.
" But it U ptrtMtly eaiuMmt with UieMiK^ninnofthiB i<cwer to llie SutMaMCamrt,
fa ccMS failing irithin tbe oonns of ita funcliotw, to BuiuUtiii tliut Uio jwwsr hM Mt
alvaj-s liHJi nghtlf cxFrciscd. Tg uy nolhing oftbe periol. !ui[i[<ily it kliurt onc^ whni
adgca ia tbcir >rau did not aluitiiiD from inlerapctnta and [arty hniiiiigua, (qn>lly tX
•rlmcK witli Uioir dslj an<I ib«Ii dl^itj, tlitn Iuvb linen octiiuiottal dwutooit fnnn
h« btDch wbich li*v(i iociimd Mriuu* mid rx(iin«lv« di«tppiob>tlOTi. Still, it vould
I ibil, with Imt t»m Fxorplions, the uoutu of tli* Jndidarj bas bwn blth(in«(iu-
tainnl by Um pToaninrnt (pdh) of th» natioii.
" Tdoie who have dcniedor doubtfd the Rnpremiicy of tbo judJcUl powtr of tLe
r United State*, uid dinounce >t ths nmr. tliiioaiia1llFyJn;i [mrrt inaStatt^ mna not to
I'lifirn Hnltti'lriiily tdTi-r(»d to (tin nlln JiivllU'iciK'y of ■ Hiipn'iiuuiy in • l*w of lli* land,
'llliout a Hupnmouy in tlie «xi<miltoD and ex«iatiaa«f th«Uw ; iioMo ibe doUMtion
of uU ec|nipoiiK betw-HH th« Fvdonl gnvmiinont and the Stat« f^vtmncaU, if. ohiltt
tbe functionnrin of tba f ojonl 'sovarniaeiit are directly or indlMotlj dcctol by, ud
rrxpontiblo to, Urn StatM, and the functioDiuiM of the atatm Mv in thfir ntipointnicnt
Mid n>*i>on»ibi]ity wholly iiiilHi>*nilDnt of ihaHnilod St«t««, nooonalltulional control <^
any uirt Ivluiignl to the Unilnl States OT«r the State*. VtiAti aucb aa Mjanication, It
ia cvidntt tbnt it would be in the power of tbe States indiridiMtly. to |nm uaantfaorind
laws, nnd Id carry ihi-m Into oamplete offset, anything in the ConititiUitfn and laiva of
tlio Unitiid StHli^H U> tho contrary nMwlth*tandin)(. Till) Kould be a »u]iiry[m powM
in lis plenary chanK'li'r ; and wh«tht>r 11 )iad ill final MtiA through tbt li(i«latif«k M-
WUtiva, DrjuJlciiryorgaDof the Slate, vvuld b« e^oally fatal t« lb« cogutiutad r«k-
tion betwcrn tlic two gorcmnwala.
"Should tlie proiiiiona of tha Ocoittftntian, a* hen reriowcd, be found not to aecnn
the itoTcmniDul and rlj[hu of th« Statra againct naiirpolinii* and abnmi nn thr [an of
the IJnItnd Ktalni, llw final r«Mrt urithin the purvtaw uf thn Conitltntioa lica in an
amcndmcnl of tbe Conititution, acoemlinff to a proccw Ap^ioablo by the Stata.
"And in tbe event of a failure of oveiy mnitltullonal luort, and an accumnUtioa of
tuuriiatlnna and abuini, nndrhcig pMtivn obwlieDce and non-rvaintancB a Krnatur cril
^than rwiaiancii and rvirolution, iImk can reinnin but ouu n^wirt, th« l<ut of all ; as a|k
al from tba canotlhid obligation* «f tbe oonitiluttonal oani{M«t to origiaal rig^t* uol
he law «S tdf-pRwrvation. Thii ia the ultiiiut ratis under all gortntKtubK abtAcr
didiUod, eonfcdetatvd, or a oomponnil of both ; and it caiuint ba donbted tliat ■
ringlo mombtr of tbt Union, is tb« oxtrrniity tiup)x>atd, but in that ecsly, woiiU km •
right, aa *n ettia aniJ ultn conitilntic>nal right, to make the ajipeaL
"Thin bdnga us to Ihe eitpf>]ient lately adnutoi, rhUk daiai for a rin^e Slate a
light to appeal if^nst an exercise of jwmr by the (tovarunent of Uie Unllod ^tf«,
dded by the State tobnuncowititBtioaal tolka p»tMlolheoon<titutianaI oomfact i
Fkb* dadiion of tht 8Ut« to b«*e tba alTeel d iiiillifyiKg ttte act of the pivcmmnnt of
th* Unitmi Statn, ntilna the dedaiiM of tho Stato b* tavcnad by lhi«f>fonrtli( of Ibc
partM*.
"ThedUtingaiahed namnaand kigit aothorilin which appear to bare aiwrled and
giTCM « practical koi* to thb doewina. «i>Utle it to * ntfeet whkb it nrigbt bo dlOoilt
alhcrviiD to t»ri tar it.
" If the dwtrinx wtre tobenaitwtaad M raqoirlng th* thTev-fourthi oTlliFStatei t«
Bustain, intltwl of th%t pfopoMkn I* t*Mi*i^ th* dadilav of tW appealing Stale, the de.
daioB to bo without eOtct ilnrlug Uio appMl, It wonM be inadMit to remaric tUt Ikl*
«Stn-Maitinitlo«ul oanrM night writ gite way to that raukod out by tW CMatlmtlon,
vtkbaatlMriiBi two-tbinbortlM Stata* to inatilBt*, aad iluwfanrtba to albeiaita, an
■nendnwatof llMOiiiMtit«tian,ertablJiUBgap«nnanci»t nkof Ik blgtinl authority
I plao* of t» ifnipilaT prvonttat d trntUaeOott only.
CH. IT.]
FINAL INT13tP&irrt3L
8oe
" Ktt It b nnilvntood that thii nullifying iluntriiw import* that tb« dMwion «t th»
Stale ii to be pmtamrd vatU, nnj that it ovcmlea the law of the Unltrd StaUB, i
oterni]od by threc-faurthi of thr. Slate*.
"Ouimon bo necMury to dnnionMntii tlin loadmlMibiliijror tiich adocMti* thu^
(hut it pot* it Id the [owcr of the aniallart fmction oTcron«.fcrtinh of Ihii Unlwd StatM^
tb*l la, of Mtcn 8tatn out of twraly-foar, to g$v« the Uw, aad ma th« Coiiitilulion,
to ntcmtMa StatM, Mch of the wvcntMn baring, as partin to the CoiiititaUMi, t*
tiiaal right with tadi of tha lerai t« Diponnd it, and to iniiat on the eipoatioa I That
the acvtn night in (mrticuUr initonae* be ri|[bt, and the KTonlcen wrong, U morn than
PmiIUb. Rut to nlaMlah a jioritlT* and pvnnanant rain, glrinff nwh • poww to Muh 1
a ittiBority over sacli h irmJDrity, wonlil uvcrtun the first principhi of fm gavemin«i)t,
and \m prxiio* necEisiLrily Dvertum tUv goveniiQMit itaelf.
"It i* to bo rccoUwt«l that theCon«tiiutioji«a»propaiipd to iht pi»pU of tlw Stntna
aa a kAoI^, and iinanlmoiTnly adoptwl by Ili» Stat** a* a irluil/, it Mng a jnrt u( the
OMutilution, (liat not Idui than thirs-fourthacf thaSlatMti1iuu1dWt.'uii)]H'tifiit toiiiakit
■ny alteration iu wlial had bwn unanimously ^re«d to. So grrat ii the eaulion on
thi* point, that in two caHi where prculior inlemti were at aliikc, a propOTtion oron
of thrM'founba la iliilruitcd, and unanimity nvjulmd to Blah* an alteration.
" When the ConatltntiDn wm niliijiti^J an n wlinte. It i> otrtaiii that then trm many
part* witidi, if Kpunitrly propoiwil, would luvu bwn promptly rqected. It I* Cu frnm
■mpoaaible thai vTcry iwrt of ■ coualitiilioii mif[ht be r^Jwlcil by a majority, and yet
takeai together m a whuli^, bf iiTLanimotisIy oc-Ci^pliMJ. Vnt conittlutiona will rairly, if
*fm, be farm■^d without reciprocal concnnious, willioul 'sttii;!;! tondtlioncd on and
halandafi each other. !■ th«v ■ conititution of * hdkIc Stjiio out of the twenly'bor
that would bear the exiwtiment of having Ita ccdnponent parti eabmittnl Ui th* peopto I
nd wpantely dMtd«d on I
" What the ht« «f the ComatHatton of the I'nitcd Sul*a would be, if a nnidl propor.
tlon of the Statca oonld exiningn part* of it partlcnlatly valued by a larga minority, can
hia«« bnl oim aoawar.
" Tba difficulty 1> not removed by Kmiliug tlw doctrioa t» a*M« of eonidnotioib i
How maay oana of that sort, involviiig cardinal proriaoaa of the Conatitutioii, hanl
oecntrod ' How waaj now exlat I How many may liemfUt apttng tip 1 i)«w rowqrl
■lubl be ii^[mioiuly emiMi, If tntltkd 1« tho piivikga of a doeiaioii in tha medal
" It it certain that the pr1iid[ile of that nods wonid not rMch further than U con-
t>m[dat*dl If a aingje Slate Mtt, of right, n>iuin thtug-foartht of its co-State* ta«V(r>
n1* tta MiKMllian of the Omtitullon, bacjiuw that proportion it uuthorlwd to snend j
ft, weald Iha plea h« Iim pbntthl* that, an the (^onililution woi unaninonily ■
Uibcd, it ought to be nnonlmouiily uxpuiindi^l '
"TSa reply t« all inch snggcattounHcms tobeunamidflbl* and ImalMlbU; that tbal
Owttlmrinn baeompact ; that it* tvxt i* to be l^xpaur><lp>i o'.-cuiiliiu; lotliepnTlaionai
far expowadtng it. — making a part of the Rompact ; mid that none of the partleacan j
rigtitf^Uf lenouno* the FX^oundtug provlalnn morn iKan any other part. Whctt tueh j
a rtftht aecmea, ai may aocrui!, it muat grow out of abuaaa of the compact idcaangthaj
rafiiren fieiin thalt baity to it."
8M
cossTiirno.v of the ukited nates. [dooe in.
CHAPTER V.
BDLES OP niTGBPlIBrATIOX.
§ 397. Is otir future commcntArieg upon the CoiistiluHoti <re
shall treat it, Uit^o, as it ia dcnoininatctl in the inslrument itself,
ji« a Co^HTiTunos of goveninient, oniaine<i and estnlili^lied by
tlic iieo))le of the United States for themselTes and their poster-
ity. ' They hare declared it the supreme law of the lan<l. They
hare made it a limited government They have defined its au-
thority. They have rentrained it to the exercise of certain pow-
cm, and reserved all others to the States or to the people. It is
a popular government Those who admittiater it are resporiBifale
to the peojile. It is as popular, and just as much emanating
from the [K'oplc, as tlie State guveniiiiouts. It t» created for OUQ,
purpusL% the Slato govemmODts for another. It may he altered
and amended and abolished at the will of the people. In short,
it was mnde by tlic people, made for tlie people, and is responaiblo
to the people.*
§ 398. in this view of the matter, let us now proceed to ooa-|
sider tlic ruI<.-8 by which it oufiht to Ite interpreted; for if these
rules are correctly laid down it will save vx from many cmbar-
nssmcuts in examining and dcfmiug il8 powera. Xfueh of the
difficulty which has arisen in all the public diecutisiona on thisi
tnbject has had its origin in the want of some nnifonn hiIm of
interpretation expressly or tacitly agreed on by the disputants.
Very diGTereut doctrines on Otis point have been adopted by differ*
* "TlM^Tmiiaentof theUaiOB," uyi Mr. Cliicf JosUee MmiImII, fai ddlmtng]
tb« opinion of Ibe conit In U<Ckl]ixli r. Marjliad, 4WImL 314; "bfniplMlkallj'Mdl
Ik!;! KOTornBiaitft til* |ipo|il«. It enunatts (rom tfami ; il« [nwpn irs gtuitol tif |
iImb, and w* i«i 1i« rawciMd diracflf on tlieni uJ for tliaii b«neGt." Id. jM. US ; '
tM slw) CobcM «t Mrginia, 6 WhcM. R. au, 4tS, IM.
"TIh gorenwMdt «f tbe Unitfil Siatm «m oncttd," air* ^'- ChaacsDor Emt,
with Djool rorca uid «DMra«ir, " by tb* fm) vdo* u>d tho Joint vitl ot lbs pMld* of
AawrlM lor tlidr oetnaMn itttaa anil gmnl wdbn." 1 Kmt'a Coonn. Lm*. lO,
* 1 bar* iMcd tht txpnadre (rardi of Hr. Webttm, dMtninjt thnn u ouKt •* »nj i
ttutt ombt to DMd. am WcUUr** Sjmihn. pp. 410, 41S, il» ; i UUeCt DtbiW, ,
S33, 843.
ca. v.]
BOLa OP irrTERPBCTATIOX.
305
ent commentatoni; and not unfroqnoatly very different langttago
held hy the aamo partien at different perioda la »bort the rules
of interpretation haro often Iiecn Bhifted to suit the emergency;
and the pasaions and prejudices of the day or the favor and odiaui
(A ft particular measure have not unfreqncntly fumiahed a mode
of ftrgiuncnt which would on the one hand K-avc the Constitution
crif^led and inanimate, or, on the otlivr bund, f^vc it an extent
and elasticity subversive of al! rational boun<)aric8.
§ 399. Let U8, then, endeavor to ascertain what arc the trao
rules of interpretation applicable to the Constitution; so that
wc inny tiare some fixed standard by which to measure its powerv,
and limit its proliibitions, and guard its obligations, aud cuforoo
its Bcwurities of our rights and liliertics.
§ iOQ. I. The lii-st and fundamental rule in the interpretation
of all inatruracnts Ja, to construe them according to tlie sense of
the terms and the intention of the parties. Mr. Justice Itlack-
stone has remarked that tlic intention of a law is to be gathered
from the words, the context, the subject-matter, the effects and
consequence, or the reason and spirit of the law.' lie goes on
to justify the remark by stating, that words are generally to be
imderstood in their usual and most known signification, not so
mttch regarding the propriety of grammar as thoir general and
p<^)ularuso; Uiat if words hapj^en to be dubious, their meaning
may be established by tlic context, or by oomjiuring them with
other wortls and sentences in the same instrument; that illustra-
tions may be further derived from the subject-matter with ref-
erence to which tlie expressions are used; that the effect and
oonsc<{U«nce of a particnlar constniction is to be examined, be-
cause, if a literal meaning wonid involve a manife-st absurdity,
it ought not to be adopted ; and that the reasiHi and spirit of the
law, or the causes which led to its enactment, are often the best
exponents of the words, and limit tlicir application.*
< I ta»tk. Cnam. C9. CO. Sm •!«> Aj-Mc'i Puidocti, B. 1, tit. 4, ik. 20. Ac ; 1
Doinst, Prtlim. Book, p. S ; N. TtmUm om (awi, di. IS, p. 71.
* Id. Sm abo Woodn. EUia. of Jaris^ f>. S4. Kalo of ■ •liallw nitlure ■ill b«
found Uid down in VutoU B. 3. th. IT, &om S SOStofSlO, «ilh mortample illuitn-
tloni OMd moM VHJouo iiiuUAoMMna. But nota f««<f bUralsitiipMr toM* tomwt
womwy nd oMsdiMOii. Buon'a AhMg. tilli^ Sutnta I. contain* an eKoeUtnt mim-
BMJ of Ac itilw for «onatralng MalutM. Donat, alut, oaotalM Rian; TaluaUo iuIm
ia napoet to iai«ii>Mation. Sco hh tnatiM on Lamv cL 13, (i 74, Ae., aad Pnllm-
iauy DUaoorw, tit. 1, | 3. p. S to p. 14.
vot. I. — 20
80C
COKSnTDTIOK OP THE DK1TGD STATES. [bOOK III.
§ 401. Where the words are plain and clear, and the flenae
distinct and perfect arisinf; on them, there is generally no neces-
sity to hare recourse to other mcanB of intorprettitioii.(i) It is
only nhon there is some ambi^niity or doubt nrisini; fn>m other
sources tliat inteq>rL'tatioD has its proper office. There may be
obscurity as to the inouuin^, froin tlic doubtful character of the
words uBod, from other elatiMC» in thu same Instrument, or from
an incongruity or rcfiuguaney between the words and Uie ap-
parent intention derived from the whole stmctiire of the iiistrii-
incot or it« avowed object. In all each casM interpretatjon
hMomes indispensable.
1^02. Rjitherforth ' has divided interjiretation into three
kiudit, literal, rational, and mixed. Hie lii-st is, where we col-
lect the intention of the party from his vords only, as they lie
before us. 'Ilie second is, where his words do not express that
intention perfectly, but exceed it, or fall short of it, and we are
to coIlMt it from prohahl« or rational conjectures only. The
thirtl lit. where the words, though they do expreitB the intention,
when they are rightly understood, are themselves of doubtful
meaning, and we are twund to have recourse to the like conjee
tures to fmdoui in what sense they are usmI. In literal interpr^
tation the rule observed is, to follow that sense in respect both
of Uie woi'ds and of the construction of them which is agreeable
to common uae, without att«nding to etymological fancico or
grammatical refinements. Tn mixed int<*rpretation, whirb sup-
poses the words to admit of two or more senses, each of which is
agreeable to common nsagc, we are obliged to collect the sense
partly from the words and partly from conjecture of the inten-
tion. The niles then adopted are, to oonsh-ue tJie words accord-
ing to the subject-matter, in euch a sense as to prodooo a
reasonable effect, and with reference to the circumstances of
the particular transaction. Light may also be obtained in such
cases from contemporary facts or expoaitiuna ; from antecedent
mischiefs; from known habits, manners, and institutions; and
' Book S. ch. 7. 1 8.
{«) In Mtk oMM ibc «ai4« m* ta be pcHrcllf manifMt ; uid lb* mam U trn*
ttkMi tu tlia RDM <rhkb Atj urivisllj
faoir on their taa. Lake v. Rolling 130
t7. S. sea i I>OH*tt n. nctidi R. Co.. M
i;, 8. 71. Hmm k|d*klMn opoMtM pro-
({WOtiTply nnt«M « itlSmnt lot«mtlaa to
of ooattitstiMrb ninrffutt v. Coir. IW
V. B. St. P<iTth«r, ttuTbiiMM ■. Whil-
voKh.1i;iT.S. l!0;Hwda*eDt.Vriek-
lain, K P. 8- SSS.
ce. T.]
RULES OP INTniPRETATlOX.
807
from oUipr sonrcM almuvt innumerable, whidi tnaj- jastiy itffect
tho jadf^cnt in drawing a fit conclusion in the particular ca«e.
I 408. Interpretation altio mur be iitrict ar largo; tiiou^h wo
do nut alwaja ineiui tlic a&me thing vlicn we speak of a alrict or
large interpretation. When conunon usage fans given two genned
to the same word, one of which is more cuntincd, or includes
fewer particulars than Ibc otlicr, the fortnL-r is called it» Btrict
•eoso, and tlte la^r, which is more comprehensive or includes
more particulars, is called its hirge sense. If we find such a
word in a law, and we take it in its murv confined sense, we are
said to interpret it strictly. If wc Uike it in its more compre-
henitivc aentie, we are said to interpret it largely. But whether
we do the one or the other, we still keep to the letter of tho law.
But atrict and large intcrpretatiuus are fretjucntly opp<j«ed to
each other in a different aense. The words of a law may some*
times express the meaning of the legislator imperfectly. They
may, in theii* common acceptation, include either more or len
than his intention. And as, on the one hand, we call it a strict
interpretation where we mnteiid that the letter is to be adhertNJ
to precisely, so, on the otlier hand, we call it a large inteqtreta-
tion where we contend that the words ouglit to be taken in such
ft senso as common usage will not fully justify, or that the mean-
ing of lh« legislator ^ something ditTerent from what his words
in any usage would import In this sense a large interpretation
is synonymous with what has before been called a rational inter-
pretation. And a strict interpretation in this sonso includes
both literal and mixed interpretation; and may, as contradistin-
guiflhod from tlie former, be called a close, in opposition to a free
or liheral, interpretation,'
§ 404. These pleuH-ntary explanations furnish little room for
controversy ; but they may neverltielcits aid us in ntakiag a closer
practical application when we arrive at more definite rules.
§ 405. IL In i'ou«tniing the Constitution of the United States,
we an^ in the first instAnce, to consider what are its nature and
objects, its bcu]>c and design, as appan>nt from the structure of
the instrument, vit^'wed as a whole, and also riev«d in its com-
ponent porta. Where its words are plain, clear, and determinate
> Tla fanealng rtnark* m benn«»d >lnuNtlat««M* ft««B«Uu>tftvt]i'iliuthnlM
of Kafenl Lnr <B. 8, rti. 7. | < lo ( 11). vtiirh (wtMiM m vpiy locM upxIHoB af
llie (pniemi nUa cf iatnpictatlaii. TV whoh <kifttr dawm u sttcativi ftnmi.
COSSrlTUTlON OP THE UKITKD OTATES. [bOOK HI.
Uie^ require no Interpretation; and it aboald, tberef(M«, be ad<
niitted, if at all, with great caution, and only from necessity,
eitlier to eocape some absurd consequence, or to guard against
gome fatal eviL Wbcre the worda admit of two ttoniu-a cocb of
which is conformable to common uaa^ that scnso is to hfs adopted
whicb, without dopartinR from tbe literal im|jort of the words,
bent barmoniiics witb tlie nature and ubji-cts, thu scope and do-
flign, of the inBtrumcnt Where the words are unambiguous,
but th<> provision may cover more or less jrronnd according to the
iutL-ntioii, which is yet snbji-ct to conjecture, or where it may
include in its general terms more or IcM than might seem die*
tatod by tbe )<encrul design, as tlint may be gathered from other
parts of the iustruiuenlT there is much more room for oontro*
Teniy;((]) and the argument from inconrenience will probably
have different influences upon different minds. Whenever such
questions arise, ihey will probably be settled each npon its owd
peculiar grounds; and whenever it is a question of power, it
should be a))proached with infinite caution, and affirmed only
upon the most persuasive reasons. In examining the Constitu-
tion, the antecedent situation of the country and its institutions,
the existence and opcrotions of the State govenunents, the powera
^nd (q>erations of tbe confederation, in sliort, all tbe circuro*
' itanocs which bad a tendency to produce or^ obstruct its forma*
tiou and ratification, deser^-e a careful attention. Much, also^
may be gathered from contemporary history and contemporary
interpretation to aid us in junt conclusions.'
5 405 a. It will probably be found, when we look to the char-
acter of the Constitution itself, tbe objects which it seeks to at-
tain, the powere which it confers, the duties which it enjoins,
■ The r*lae o( (onUmponij inlcTjirrtation ii mwh inrnded ««■ b]r tb« SniimM
CmK, In StiMit *. lAJRt, 1 Crancb. 299, >09, in Mirttn v. nuntrr, I Wlini. R. 804,
\ mi In Oah«w r. Viiieliili, B WImM. B. Ml, 4IS to 4S1. Than *n tuxml biMancn,
I bo>«nr, ia whioh lh« tumUmfo-nry InUfvclitioiu by wm« et tk* neat diaUDgaabed
I teanim of Uia Conrtitntion Iwra beta wrctndwl. One cf tb« mool itriUnf U to bn
' tDnnd in Ibe il»cfaio« of tb« teptcnw Coart <J iha mublKt; «f t SUto hjr knr cilioni at
ftUMhtr aute (CbbbolM T. G*M)(ta, S Dall. 419) ; knd ■iiatlMr (n IhadwMan bj ibfl
cxwDttTc ind tba Son«t#, that tha convrnt ot lh« UUcr ii not iiniiiMij lot*moral
trcn oAra, «lltinugli li ii tor apinlbUiwaU. Tlir F»denliit, So. 77.
(a) Vbcn tttMoadlitollotti] pdrpom Anii, tr thrj on b« Mjiaraud. Plod^U
m tOBpUtdr KlBRled «itb shat ak>no (L Co. ■. Sirhatt*. IK IIS ; Albany ■>.
wonU bt proper, lb* wImI* oimI U to- flunlvy, lOS V. S. 3il6 ; Keokuk Packet
ittUA. AUm «. LooUeM, 103 tT. 8. «0. Co. v; Keoknk, 95 V. 8. 89.
CB. T.]
RULES OP IXTESPBETATION.
809
and the righto which it scciirofs as well an the known hiHtArical
fact that many «f it« proviiiiuiis were raatu?™ of comikromisc, of
opposing interests and opiniooa, that no uniform rule of inter-
pretation can bo applied to it which may not allow, even if it
does not positii'ol}' dcmuDd, many moditications in its actual
application to particular cUumm. And perhaps the nafeat rule
of intorprctutioQ after ail will be found to be to look to the
nature and objectti of the particular |>ua'cni, duties, and ri^hta,
witli all the lights and aids of contemporary history, and to give
[• to the words of each ju8t such operation and force, conaistent
with their legitimate meaning, ats may fairly secure and attain
the ends proposed.'
§ 406. It is obvious, however, that contemporary interprota-
tiou must be reaorted to with much ((ualificution aud reaerre.
In tlie first place, tlic private interpretation of any particular
man or body of men muat manifestly be open to much obaeira-
tiMi. The Constitution was adopted by the people of the United
State*, and it wu» submitted to the whole upon a just survey of
its provisions as they stood in the text itaclf. In different States
ami in difTorcnt conventions, difTerent and very opposite objec>
tiona arc known U> liuvo prevailed, and might well bo presumed
to prevail Opposite interprctationa, and difTerent explaiuitiuus
of diffvreut provisiona, may well be presumed to have been pre-
sentud in difFcrenl bodies to remove local objections, or to win
local favor. And there can be no certainty, either tJiot the
different folate conventions in ratifying the Constitution gave
the same uniform inter|)retatioa to ila language, or that even in
a single State convention the same reasoning prevailed with a
majority, much less with the whole of the supporters of it. In
the interpn'tation of a State statute, no man ia insensible of the
extreme danger of resorting to the opinions of those who framed
it or those who passed it. Its terms may have differently im-
presaei] different minds. Some may huvo implied limitationa
and objects which others would ha^'e rejected. Some may have
taken a cursory view of ita enactments, and others have studied
them with ]>rofound attention. Some may have been governed
by a temporary intereat or excitement, and hare acted upon that
exposition which most favored their present viowa. Others may
■ P«r Mr. JiMka Stoty in Ptlgg n. Tha DMBiii09nr«*1lli of PntMylnnU, 14 IVUnTi
8. C B. 310.
810
CONSriTDTIOM OF TUB ONITBD STATES. [BOOK lU.
1/
have men larking bcDeath its text what commcDdvd it to their
judgment against even present intennts.. Sonw may have iutor-
prct«<i its lan;:uttg« strictly aud closely; otheni, from a different
habit of thinking, may have given it a large and liberal nicauiug.
It is not to be prcaumed that, vvim iu tho convention which
framed the Coniititutiun, from the caiuies above uiontiotiud a»d
other cauDcs, the clauiie» n-vro always underatood in the aainc
ocoBe, or hud prcciaely the same extent of operation. Every
member nceraaarily judged for hiinnelf ; and lh« judgment of no
one could be, or ought to be^ conclusive upon that of others. The
known diversity of construction of different parts of it, as well
as of the mass of its powers in the different State conventions,
Uic total silence upon many objections which have since 1)een
started, and tlie strong reliance n)M>n others which have since
.bocn uuiveraally abandoned, add weight to these suggestions.
Nothing btit the text itself was adopted by the people. And it
would certainly be a moat extravagant doctrine to give to any
oomnieutary then made, and dfortioriy to any commentary since
made, under a very different posture of fcoling and opinion, an
authority which should operate aa an aii»oIute limit U{Mm the
text, or should superaede its natural and just interpretation.
§ 407. Contemjiorary construction is properly resorted to, to
illustrate and conlirm the text, to explain a doubtful phrase, or
to expound an obscure clause ; and in proportion to the uniformity
and universality of that construction, and the known ability and
talents of those by whom it waa given, is the credit to which it
is entitled. It can never abrogate tJie text, it can never fritter
away Its obvious sense, it caa never narrow down its true limi-
tatioos, it can Duver enlarge its natural boundariea.' We shall
> Hi. JolEtnoaktakiitdowatiMrala^akiobbeiietaifpaifiKtoniOMfbrtbeiiib^r-
pRtotion oi the Cnuiitntioa. The Snt U. "Tlw eapilil ud Ifdjng irtJBat of the
OMMtitntioo «u, to k«TO «lth ikc Stuoi all «iuLarlilca wUeli faapeettd tliair own citk
MBi vnly, ud u> taHubr ta tb* tTnllad StatM Umm whidi mpartod citiMM of fon4g«
orolhcc Sutwi !«■*]«> utavwml MtooatMlvM^ Imt ona w to all otbtn. lu thvlal-
tar CM^ tbt*. OMMtivotioni ihoaU l«ui to Um genml jwudirtiea, if tlw wonU will
bewit:«nilin hnerortbeSlatM ht tbehnner, ifpoMiMe tolMMMOrtRMd." iSti'
let«M'«C«n«fi.S73i M. SSI. 393 ; Id. MS. KowtltevttytlwayoiiwhkfcUiUoMion
b toMwUd i» wrotwdktcJ hj tlw pwrtilni of th« Oa^ltutJoB tt»lf. U iii>b; tiuUncM
MitboritUi u>d p»«m va f^-nm nklch mpact dtliMU of th« n<|NCtlTO StM,U» wtihout
nfOMim to r<9nlt[Qm or the dlliaiit ot <dliur Stat**. 1 JvRenon'i Can«ifL S91, tti,
SM. Bittf tlifa g^anl tiMory w*t« txw^ itwtuiU bmauiiiiojnAml* of iiUitTcata-
Uui, rfuM a partioaW oltuaa misht fonn an exocptioii to it j »oA, indeed, ntry elauM
OH- v.]
RCLKS OP QiTBBFBCtAnON.
811
luve abundant rcMou hereafter toolMer<re, wlK>n wo enter upon the
aualvflU of tlie particular clniuea of the Cuiutitutiun, how many
Yy loose iuterpretatioiia and plaiuible conjvcturvs vero haeardcd
at an early period, which have siuce silently died awuy, aad aro
nu^t at atl ereuU to bo ranitniod xcoidln^ la It* fair inknl and olqcda, as diaekaeil
in iu langiuga, Wliat tort «r * rak U Uia% vhioh, wUfcont rapwl to tho imtcat «r
abjcvUarik|arUcab«olaua<i,ia«iMathat it ■ball.if pMvtf^fiwt if rauoMiif'), W eon-
lUwil iu Utia lit tlM StatM^ nrnjij bacauM It mpccU llicir dtinai I He tOMOil
' WBOu b, "On avny cjuution ot oonatrnctloD [«« thonld] eutj ODfMlTM Iwtk to Ibo
\ tins wb«u the Constitatinn wiu uloptod ; >«ooH«ot llie ^ri t muiifcalvd tn the <kbat«a ;
- nul iiuUul af trylitK wluit meuing naj U sqnwicd out ef the trit, or Invtatnl
m»iaiit it, cinrunti In tlis jiroWbU oow is sliUli it iru jiukiI." Horn, sho iloo not
irr III' utET Itwxviiiru and iiicaticnnico of tliui canon t Haw an wa to know what wm
tliou^tof partifukr cljin»iof UieCanstlnBlioDat th« tinworiUailoptloDr Ib many
, no printed date*** fin taj acoonkt pt any ronatratttoa ; and where aaj in givni
I dlOuwit pafsoM hald diOareut doctrinea. ITh'M la to pmnil I liaiJc^ of all of tho
f 8UI> ooDvantJonii, tho Urbulai of five onljr otn pRwrTod, and theu very imperfectly.
Vhat b to U dono m to the otbor ri^ht 3taUa T What b to h« doo* an to th* dovra
new Statta, which hare com« into thvlTnlon andtrcoDatriMtiaiu which ha*a been aatab-
< Ifahod aipdwt what wow [isnonii may doeok tlio iwning of the ftaoMn of H I How
I aro wo to nirive at what is tho ntoat ptobaUe MMning T An Mr. Hamiltam and Ur.
fUadiion Btid Sir. Jar, thn eipoundeti in the FnUralbt, to he (allowod T Or ara others
' «l a dilK-reiit opEniuu to (^Jilt ua I Ato wo to b« KOTamed hj the opiniuun ut a fuw,
now droll, who hare left them on ncoiil T Or by tbam of a finr now living, riinply
bccaniB tboy war* acCoa to thlai days (ootutitetitig net eno in a tiMOiuiiid of thoao
who woro called lodollbeioto npa (ho OmilituUon, and sot o«w in tan thouiandof
Uiooi who were In favor of or againal it, anioug the pouple) t Or are we to be govomod
by (he opinion of thoH who oonititutfd n mnjority of tbinc who were caltnl to art on
thai oecaidon. flllMt M framanof or votenopan theCanetilDtioDr If by the Utter, la
wkot taaflMr oan we linow thowt ofdateus > Are w* to be soreniod hy the aenao of a
ni^jonty of a patti«uUr State, or of all the United StatM T It acs bow ar« w« to awar-
tain what that tenm wa> t U the ttaar of Che Coiiitilotkai to be aaorrtaintd, not by Ita
own text, b»t hy tb« "proitM* w«ini{ajr ~ to be ^tlmcd hy eo^jeetvtw from acattncd
iMmmmUt, ttom private ^pna, IVow tha tab1*-Ulk of aome thIaiMaB, or the jemiaa*
W^gentjons of othm T li the CoatfHnlion of the CTnlUd Stataa to be tho only itutn-
aiant wMch b not to be iatarpntad by what b wiitton, but by jkoImU* inoaM*, aalda
.'from the l«ii • What wonld bo atU of intarpnting a atstato of a State UgirfslMa bj
[andtaTotinmo find out. from priratnsourea^ tho oljt»ob and ofiniona of ■retyfbw,
e««t7 one Ihoughl, what be wiahtd, liow ho IntMpnted b t 8n|ipoM dUetcnt
I had diOenail opiaioM, what b tobodonoJ Siip|i«aa dHfawt pwiaM aw not
iMto "theioobablonauuDg' of the &u>i>n or of iha paopla. what iatefpiola-
'tfaa b 10 bo MIownl t The**, and many qiMattoiu of As mm sort, wight b* aakod.
It b olwion* that thi«« can bo m oecaii^ to thi peopb in any oonatiWtioM of govern-
Y DKBta it iliey aie not tojiul^of it by IIm EataHoanlnf of the wotdsof tho text ; hat
'' the woidi arc to be bent and bmken Iqr tho " foohabb moaning" of potaoiuwfcomtlier
never knew, and whose opiniooa and neans of IntNination may be oo bttter than their
own ' Tho propb adofilod tho CoBstilMbn aeeordlng to tlte wonb of the text in tliau
L tauoMoUe InUrf-retalion, end n«taoeardlii|i to tiki peivate intarpntatknn of any (sttiMK
ikr Mca. The opiaioni of tha bitcr OMy amuliMM aid as in aninaj at Jnu nsulb ;
S12
COXSTITUnON OP THE UNITED BTATEfl. [iMOK IH.
now retfliued in no living memorj', aft a topic eitlier of praise or
blame, of alarm or of congratulation.
§ 408. And, after all, the most imesceptionnblo source of
collateral interpretation is from the practical exposition of the
goi'ernment itself in its ^'arious departments upon particular
<]iiefltions diiicuaiwd, and twttled upon their own single merits.
These approach the nearest in their own nature to judicial expo-
sitionft, and have the same general recommendation that bcloDga
to the latter. They are decided upon solemn argument, pro rt
nata upon a doubt raised, U])on a U» tnota, upon a deep sense of
tlicir importance and difficultr, in tlie face of the nation, with a
view to present action, in the midst of jealous interests, and b;
men capable of urging or re]>clling the grounds of argument,
from their exquisite genius, their comprehensive learning or
their deep meditation upon the absorbing topic Hon- light,
compared with these means of instruction^ arc the private lucu-
brations of the closet, or the retired spcculatiuna of ingenious
minds, intent on theory or general licwit, autt unused to en-
counter a practitral difliculty at every step ! {a)
§ 409. III. But to return to the rulco of interpretation arising
txdireeto from the text of the Constitution. And first the rules to
Iw drawn from the nature of tho inHtrumcnt. 1, It is to be con-
strued as n frame or fundamental law of govt-rnment eatablishi'd
by tho PEOPLE of the L'nited States according to their own free
plrasurc and sovereign will. In this respect it la in no wise
distinifutshablc from the const itutioos of tho State governments.
Each of them is established by the people for their own purjMjiscs,
and each is founded on their supreme authority. The powers
bat tiMjr aa nevti \» cwMlnitnt. Thii Fttknlitt dvnM ihit 111* PmUeni coald r*-
more a pubtio officer without the aonwnt of Uw Stukfab The Snt Congnw tOLnned
Ui right by ■ men majority. Whiob b to be fotlewed >
(a) That t. iinwticd MqwUtkm ol tb«
OuMtllullon \onif wqaicKoi is niU not
be departol froia, tet Slewut v. Lurd, t
Cruidi. S99 1 HiCulloch k ll>iTl«ii<t 4
WhML ns : RriMM> V. Bank rf Kannioky,
11 P«l. tJ7; W«t KJTcr BHV Co r.
DU, S How. Su7 : Buik «r Unitol Sutet
n Hiiblnkl. 10 WhML eSi OgdM V.
SMUiilcn. 13 WhML SM ; Cnloa Int. Co.
n II«)tc 31 How. Mi lJitil«d SiatM ■.
aaanre, S WiIL S30 ■ Hu^mp. Hnslir*.
« T. a Mom. 43 : fingcB r. Pa^ S Gill,
ll;Coalutr. pM[ll^lIW(od. B11 ;!Jor.
ri*v. Clynwr, S Pmn. 8l ST7) Pike '. llo-
gowi. 44 Ho. 4>9i Britlon r Vnry, 14
Mich. 86 ; Sute K FuliinnMi, S Ker. 19 g
Ht-igBttiu >. D■vl^ 6t N. a «t ; Flxro-
Birr V. PlnnHiKT, 97 Mb*. lU ; Chantbm
V. Fitk, » Ttxu, Mi
CH. T.]
BDLE9 OP INTCItPRETATION.
813
vhicli nrti conferred, tlio restrictions which aro Imposed, tho an-
thoritii.-it nhich arc cxcrcitto.!, tho orjranizatiuii am) distrilnitioa
thereof whidi uro provided, ore in each ca8e for tho snine object,
the common beticfit of the goTerncd, and not for the proRt or
dignity of tlie nilcrs.
§ 410. And yet it hns been a very common mode of interpre-
tation to insist upon a diversity of lulcs in cmntniinir the Slate
constitutiona and that of the gi'neral govcmmeiit. Tl\us, in the
Commentaries of Mr. Tucker upon It1acknton«, we find it laid
down, n« if it wore an incontrovertible doctrine in rP8»i"d to the
Constitution of the United Statea, that "as fedoral, it ia to be
conntrued ttrictly, in alt cases, where the antecedent rigtita of a
State may bo drawn in qucstioa " As a social compact, it ought
likewioo " to receive tho same strict cooBtruction, wherever tho
right of personal liberty or of personal security or of private
pro]»erty may become the object of disjiutc; beeaiuu; every per-
son, whose liberty or property wag thereby rendered subject to
the new ^vernment, w<u antectdfHtfg a memher of a cii'it toeiety,
to whote rtgulationt he had tuimitUd hinue^f, and under whote
authority and proUctton he Hilt remaau, in aU ea9ea not erprettlg
tuhmitted to the nev ffoeernment." '
§ 411. Wc hem see that the whole reaiioning is founded, not
on the notion that the rights of the people are concerned, but the
rights uf the Statei. And by atriet construction is obviowtly
'mcttnt the most limited sense belonging to tho words. And the
learned author rcli«», for the 8t)p}K>rt of bis rcasuning, upon itomc
rules laid down by Vatt«l i» relation to the inlerjiretjition of
tics in relation to odiou* things. It would seem, then, that
the Constitution of the Unit<?d Stales is to be deemed an odious
instrument Ami why, it may bo asked ? Waa it not framed for
tlie good of the people, and by the people t One of the sec-
tions of Vattel, which is relied on, states this proposition,' "That
whatever XkoAr to change the present state of things is also to lie
ranked in tlie class of odious things." Is it not most manifest
kthat this pro|¥)Bition is, or at least may be, in many cases, fiin-
'damentally wrong ? If a jwople free themselves from a despotism,
is it to be said that tho change of government is odious, and ought
to be construed strictly ? ^Vhat, upon such a principle, is to
> 1 Tgckw'* Bkck. (>»». App. ISl.
• B. S. j »05.
814
CONSnTUTIOK OF THE USITED STATtS. [BOOK HI.
become of Uie American Kuvulutiuct, utnl of our State goTenunents
and State coitst)lutiou« ? i^uppoito a well-unlcrud gtivenuoent
arises out of a Hlate of disorder tiiid uueu'vby, is Kuc'b a ^vfroineut
to be con»iderod odious ? Auutbvr scctiuu ' uddti : " Sincu odious
things nre tboae whose restriction teuds wore cortaiiily to equity
than tlieir extension, and since ve ouglit to fHimie that liiiti
wliich is most conformable to equity, when the will of the It^s-
latun; or of tlie contracting jiarties ift not exactly known, we
should, wh^re there is a question of odious things, interpret the
terms in the most limited s«nse. We may even, to a certain
degree, adopt a figurative meaning iu order to arort the uppres-
sive cousL-quenccs of the proper and literal senses or anything of
an odious nature which it would involve." Does nut this soctitm
contain most lax and unsatisfactory inf^dicuts for interpreta-
tion ? Wl» is to decide whether it is most eonfurmable to equity
to extend or to restrict the sense T Who ia to decide whutber the
provision ia odious ? According to this rule, tlie mo«tt opposite
interpretations uf the same words would bo equally correct, sc-
. cording an the interpreter should deem it odious or salutary.
Nay, tiio words are lo be desertt-d and a figurative si-nsc adopted,
whenever bo deems it advisable, looking to the <*dious nature or
consequence uf the common sensut. lie who b<.-liev(.-t( the general
government fuundt-d iu wisdom and sound policy and tbc public
safety may extend tlio words. He who dvems it odious, or the
State govonimeiils tbo truest protection of all our riglits, must
limit tlie words to tbo narrowest meaning.
§ 412. The twelfth amendment to the Constitution is also re-
lied on by the same author, which declares "that the powers not
delegated to the United States by the Constitution, nor pro-
hibited by it to the States, are reserved to the Stai«> respectively,
or to Hie jKople." (a) He evidently supposes that this means "in
•11 cases not exprenlif »abinilted to the new guvernment;** yet
the word ** expressly " is nowhere found in the amendment But
wo are not considering whether any powers c«n be implied; the
only point now before us is, how the express powers are to be
oonstrued. Are they to be construed strictly, that is, in their
1 IS06.
(a) 8«* OoldM V. Pnnn, S Wasb. C.C. S13 ; CiliM a. Bull, S DalL 8M i Oflinao
CB. v.]
UULS& OP INTERTRBTATIOK.
815
most ltmit4»l Hciuc T Or uro Uioy to receive a fair and rcasom-
Ijlc c uusl ruction, iic<!on)iitg to tliu plum miiiuiiug of Uic tcnuit and
Uic oljjucU fur which ihcy ure uKod !
§ ll-'i. ^Vhen it ift Mid tliat tLc ConxtitutioQ of the United
StAt«8 should b« construed strictly, vit-wt-d aa a social compiiut,
wbe»«v«r it toticbea the rights of property, or of personal Reciirity
or lihertT, the rule is equally applicable to the State coustitu-
tionfl in the like cases. The principle upon which this iiilerprc-
tation rcata, if it has any foundation, must be that the people
ht not to he presumed to yield up their rights of property or
liberty beyond what is the clear sense of the language and the
objccta of the Constitution. All govenuneots are founded on a
Borrender of Bome natural righlit, and impose some restrictions.
We may not be ut liberty to extend the granla of power beyond
tlie fair meaning of the words in any such caac; but that is not
tlie (juration here under disciiaaion. It is, how we are to con-
Btruc the words aa used, whether in the most confined or in the
more liberal sense proporly bclcmi^iog to tbem. Now, in con-
etmiDK a prunt or surrender of powers by the peo]>le to a mon-
arch, for his own bvnofit or use, it is not only natural but just to
presume, aa in alt other cases of grants, that the parties had not
in view any large sense of the tttrms, because the objwta were a
derogatitm permanently from their rip^ts and interests. But in
construing a constitution of government, framed by the people^for
their own benelit and protection, for the preservation of their
ri^ts and property and liberty, where the delegated powers are
'not and cannot be used for the bent-fit of their rulcni, who arc but
tbeir temporary servants and aguuts, but are intended solely for
the benefit of the people, no such presumption of an intention to
use the words in the must rvstrietod sense neccssarilj arises.
Tlie strict, or the most extended sense, both being within tbe
letter, may be fairly held to be within tJieir inlpntion, as either
sliall Iwst promote the very objects of Iho people in the grant;
as either shall best promote or Heeure their rights, property, or
■ liberty. The words aro not, indoeti, to be stretched beyond their
'&ir senao; but within that ranj^ the rule of interpretation must
be taken which best follows out the apparent intention.' This is
the mode, it is believed, universally adopted in construiug the
State coostitutiuns. It has its origin in conunou-scusc. Aud
1 BawUoiitUC«wtiUtia«,«fc. I, p. U.
810
rOSSTITtlTIOM OF THE DNtTCD STATES. [BOOK III.
it never can be a matter of juHt jealougj-; because the ruloi can
have no permanent interest in a free goTernment, distinct from
that of the people, of whom they are a part, and to whom they are
reaponnible. Why the same reasoning should nut ap]>)y to the gor-
emmont of the United Statea it is not very eaiiy to conjecture.
§ 414. But it 18 said that the State {^vommcnta bein;; already
in existence and the people subjected lo them, (heir obedience to
the now guvernmeut may endanger their obodicnoe to tJte Slat£»,
or involve them in n conflict of authority, and thus produce in-
convenience. In the firat place, tt \» not true, iu a just sense
{if we are right in onr view of the CoRiititution of the United
Stntot), that such a conflict can ultimately exist. For if the
powers of the general government are of paramount and supreme
obligation, if they constitute the supremo law of the land, no
conflict as to obedience can be found. Whenever the queatioD
arises to whom obedience is due., it is to lie judicially settled;
and being aettled, it regulates at once the rights aud duties of all
the citiiena.
§ 415. In the nest place, the powers given by the people to the
general gov^Tnment are not necessarily cai-vwi out of the powers
already contided by them to the State governments. They may
be such as they orisrinally reserved to themselves. And, If they
ore not, the authority of the people in their sovereign capacity
to withdraw power from their State functionaries, and to confide
it to the fuuctiunarli« of the penoral gox-emment, cannot be
doubted Or dunied.* If they withdraw the power from tlie ^tate
functionaries, it must be presumed to be because they deem it
moro useful for ihemgelves, more fur the common benefit and
common protection, than to leave it where it has been hitherto
deposited. Why shottid a power in the hands of one functionary
i»e dilTer^'Utly construed in tlie hands of another functionary, if
in each case the same object is in view, the safety of the poople f
The State governments have no right to assume that the powier
is more snfu or more useful with them than with the general gov-
ernment; that they have a higher capacity and a more honest
desire to preserve tlic rights and liberties of tlie people than the
general govcrnmont; that there is no danger intrusting tliem,
but that nil the poril and all the oppression impend on the other
side. Tlie people have not ao said or thought; and they have
1 H4rtlii ». Hantcr, 1 Wbnt K. M4, 8U.
CH. T.]
nCLra OF INTERPRETATIOJJ.
819
"Tho p)T«minent, tli«n, of the United Stntes can claim no
]iower» wliici) are not granted to it )>}' th« Constitiitioa; and the
powera nctimlly gmiited mnat l»e suoli as are exproosly given, or
pvea by necessary implieation. On tho other hand, this in-
strument, like pi-ery other jn'ant,, is to have B reosonahle con-
struction according to the tm])ort of ita tfrmii. And whore a
power ia exprcaHly given in general terms, it is not to ho re-
strained to particular cases, unlcHS thut construction grow out of
the context exprctsly, or by necessary impHcation. Tho words
are to be taken in their natural and obrioua sense, and not in a
sense unreasonably restricted or enlarged."
$418. A still more striking; response to the argiintcnt forn
strict construction of the Constitution will bo found in the lan-
guage of the court in the case of Gibbuus v. Ogden, 9 Wheat. 1,
4c. Mr. Chief Justice Murshall, In delivering the opinion of
the court, says: ''This instrument contains an enumeration of
powers exprciwly gruntud by the people to their guvummpnt. It
has been said that these powers ought to he construed strictly.
But why oujHit they to he so const ni«<l ? Is there one SL-iitenec in
the Constitution which gi%*cs cotiiiteimncc to tliis rule f In the
lost of tJic enumerated powers, that which grants expressly the
means for carrying all others into execution. Congress ia au-
thorized ' to make all laws which shall be necessary and proper '
for the purpUFiC. But this limitation on the means which maj
be used is not extended to the powers whidi arc conferred; nor
is there one sentence in the Constitution which hua been pointed
out by the gentlemen of tlie bar, or which we liave bi-en able to
disocrn, that prescribes this rule. We do not, therefore, think
ourselves justified in adopting it. What do gentlemen mean by
a strict construction ? If they contend only against that enlarged
eonstrnction which would extend words beyond their natural and
obvious ioiport, wo might question the application of the terius,
but should not controvert the principle. If they contend fur thut
narrow construction which, in support of some theory not to be
jtoond in the Constitution, would deny to the govemiueiit th<Mo
povera which the words of the grant, as usually underttlood, im-
port, and which are consistent with the general views and objectB
of the iufltrument, — for that narrow construction which would
cripjtle tiie government and ren<ier it unequal to tho objects for
which it is declared to be instituted, and to which tlie powers
B18
CONSTITUTION OP THE PNITED STATE3. [BOOK Itt.
§ 417, The language of the i^upreme Court in the CMC of
Mnrtia r. ilunter' sucms peculiarly appropriate to this part of
our subject "The Conatitution of the United Status," say the
court, **vaa ortlainod und csliiblishcd, not by tLo Stalet in their
Bovcreifni capacities, but emphntically, ii8 the preamble of the
Cotuititutiundcclureit, by the people of the L'nited .States,* There
can bo nu doubt that it was com{)etent to the pci>))Ie to invest the
general goreniment with alt the powent which tJiey niij^ht deem
proper and necessary, to eslcn<i or reatrain those powers accord-
ing to their ouii (rood pleasure, and to giva tht-m a paramount
and iiu|ircme authority. As little doubt can there be lltat the
people had a right to prohibit to the States tlie exercise «»f any
I<ower8 which were in their jud^ent incompatible wilh the ob-
jects of the general compact, to make tlie powei-s of the State
governments, in given caaee, Hulmrdinate to those of the nation,
or to re«er^'e to tliemsei^es those sovereign authorities which thoy
miftlit not choose to delegate to either. The Constitution was
ni>t, therefore, neepssarily carved out of existing .State sover-
eiintties, nor a surrender of powers already existing in State
institutions. For the powers of the State goremments depend
Tipon their own constitutions; and the people of every State had
a right to modify or restrain them according to tlieir own views
of policy or principle. On the other hand, it is perfectly cloar
that the sovereign powers vested in the State govemmenta by
their respective ccHistitutifms remained imaltered and unimpaired,
except BO far as they were prantcd to the government of the
United StatOB." These deductions do not peat upon general rea-
son, plain and obvious as they seem to be. They have been poa-
itivoly recognized by one of tlio articles in amendment of the
Constitntion, which declares that "the powers not delegated to
the tlnitcd States by the Constitution, nor prohibited by it to
the States, are reserved t« tho State* respectively, or to the
) 1 VfhtM. K. 301.
* Tliis ii >till more forcibly lUted bj itt. Cliitf JuitJoe Utrdiall In ddireiing Ilia
opiniott at tho court in UcCuUwIi v. lluryliini!, in n jiuivnitc iilnailf cil«d, i ViMBt.
B. 316, 402 lo 406.
• IjiNi tlaa McCdllodi v. Mnryliind, i Whtat. JL 318, 403 to 400.
I
I
I
I
{a) Spoon«r n HcCooacll, I M«Lmd, 337 1 Rbwle IfUnd •. ItuaMhoMll^ 12
p.i.r».
CH. T.]
RCLBa OP INTntPfiETATION.
817
the cxcluai\'0 right to judge for themHelven on the subject. Tlicj'
avow that the Constitution of the United Slates was adopted
by thtrm "in order to form a more perfect Union, establish jus-
tice, insure domestic trnntjuillity, provide for the commoD dt>*
fvuce, prumo(« the general welfare, and secure the blessings of
liberty to tlicitirtelvM and their pOMtority." It would be a mocJc-
i-ry to auk if tiie«e are odious ubjects. If these require every
gTKnt of power withdrawn from the Slate Kovcmmeula to be
deemed ttrietimmi ynrit, and cou>itruod in the meet limited
sense, even if it should defeat these objccta, what peculiar sanc-
tity have the State govenuneotA in the eyea of the people beyond
these objects ? Are they not framed for the same general ends i
Was not the rery inability of the State governmenta suitably to
provide for our national wants and national independence oud
national protection the very groundwork of the whole system T
§ 416. If this be the true view of the subject, the Constitution
of the United Stales is to receive as favorable a construction as
those of the States. Neither is to be Donatrued alone, but each
with a reference to the other. Each belonga to the same system
of government, ead] is limited in its powers, and within the scope
of its powers each is supreme, f^ch, by the theory of our gov-
emmonl. is easeutinl to the existence and due preservation of the
power and obligations of the other. The destruction of either
would lie equally calamitous, since it would involve the ruin of
that Wautiful fabric of balanced government which has been reared
Willi so much care and wisdom, and in which the people have
reposed their confidence as the truest safeguard of their civil, re-
liginiia, and political liberties. Tlie exact limits of the powers
confi<led by the people to each may not always be copable, from
be inherent difficulty of the subject, of being defined or ascer-
tained in all cases with perfect a-rtainty.' But tlie lines are
generally marked out with suHiciont broadness and clearness;
and in the pn^^ss of the development of the peculiar functions
of each, the part of true wisdom would seem to be, to' leave in
every practicable direction a wide, if not an unmeaanred, distance
between the acluul exercise of tJie sovereignty of each. In every
complicated machine slight causes may disturb the operations;
and il is often more easy to detect the defects than to apply a
safe and adequate remedy.
1 Tlie FtdMsUit, So. 87.
»w
antrmmvi* or tkb vrmo wikm-. [mkx ib.
I i\1, 'I1*<i Ihuynin^n lA lb* flD|fKaie Coart \a the cue o(
Mitrilri V, lldNlAr' MWiiM iMiulinrlj' B|>prupHat« to this put of
init Niit>)'i't. "Tlii> r<»iitttrt|ti<>n of thv I'nitod fltatcK," ny the
mni\, " WHM iiriliiliKxl ntxl i-«ilii)ili»Ii«d, u<*t Xtj the AaUt ia their
■nvHHilifii ii«|iiirtlll<M, but imiptuitkaUjr, u the praonbte of the
ffiilialllitlliiii iti'ii|ui'i-H, li}' tli<* |riMi|il<^(if ih*" L'nitwi Stales.* There
UHli lit) nil ilniilil tliuL i\ WH <:4>in|iuU'i)t t4i (lii> people to inveHt the
IhMii'iiil Kitviiriitnnnl wllli nil thn powoni which tiiey might deem
ItHUHir mill iit'oiimiirjr, )ii >'«(<'iiil "r n«train thcwo powers ac«ord-
tiH III lliiilr oivii k<mhI plMmirn, Kiid to ipvn Uiura a panimuunt
Hltd miinviiin niilttorlly. A« llltin doubt cjm thoro bo that the
tiiM))dii h>til It i\v,hi lo pMkliildt to thr Stutca tb<> t'sorciiw of «nj
IMiVit'iH wliUih Wt'Ki lit llii'ir jiul|ii<ii*i>t iiiriun{K)tihU< with the ob-
wtn ii( lh» )ti<mtrwl t<oiti)iMi-t, lo luitkp the |H>w('rs of Ute State
||\ivtH'(tiHt^(1«« lit tit^'*^ ottw^ aubonliuxtn to ihoM of the oatioai.
IW to itW'VVit |o Uu-ittM^lviit lltiwtf MVi>i><i{n) HUthorilies which thej
ttttHhl tttil «>li»>M>«< Itt th-Kfptlv to citht.T. The OooctitntiaB
IMtlk llH>rtfhw«k mNxiWHtHl.r t«nv«l ual of vsultaf Soile
S W'*i k MrfMt^ of |MWvn fttrca^f «iMliBK m
.isuw Kvw Itw |wwww tif lk» State fvmnmmatm
uyw« «Vif v^vi« WNMttirtUNA; mkI tk* pM¥^ «( «ra7 ^
«l|pli]|D9 g* itftM^H^ 0« lih» aliM kMi4. at b
Mtc <tMMMlMlN»««HfiMl vaafei
^^^^^ ^^^^^w ^^^n
t>AV>.v\ " ' ■ I rtl 1Mi> bs
CH. T.]
KtTLBS OP niTfSPRETATION.
ne
**The pnT«niment, then, of the United States can claim no
powers which are not granted to it bjr the Constitution ; and the
powers actually granted innat be such us arc expressly given, or
given hy neoeasary implicatiun. Oii the other hand, this in-
dtrument, like every other Krant, is to hare a reasonable oon-
Btriirtion according t« the imi>ort of its terms. And whore a
power is expressly given In general terms, it is tiot to bo re-
strained to particular cases, unless that constmction grow out of
tlie context expressly, or by ncc€«sary implication. The words
are to be tJtken in their natural and obvious eenM^ and Dot in a
sense unreasonably ro«tricted or enlarged."
§418. A still more striking response to the arirumcnt for a
strict construction of the Constitution will be found in the Ian-
gunge of the court in the case of Gibiions v. (^den, 0 Wheat 1,
Ac Mr. Chief Justice Marshall, in detivoring the opinion of
the court, sajs: "This inalniment contains an enumeration of
powers expressly granted by the people to their government. It
has been said that thew powers ought to be construed strictly.
Bnt why ought they to be so confitrued ? Is there one sentenc*^ in
the Cmistitution which gives countenance to this rule ? In the
last of the enumerated powers, that which grants expressly the
means for carrying all others into execution, Congress is au-
thorized * to make all laws which shall I>o necessary and proper '
for the purpose. But this limitation on the moans which may
[>c used is not extended to the powers which are confen'cd ; nor
is Uicrc one sentence in the Constitution which has been pointed
oat by the gentlemen of the bar, or which wc have been aide to
discern, tljat preftcribes this nilc. Wc do not, therefore, think
onrsetves juBtificd in adopting it Wtuit do gentlemen mean by
a strict conatructiuo ? If they contend only against that cnlai^ed
construction which would extend words beyond their natural and
obvious import, we might question the application of the terms,
but should not controvert the principle. If they contend fur that
narrow constmction which, in support of some theory- nut to be
found in the Constitution, would deny io the gorenunent those
powers which the words of the grant, as usually tmderstood, im-
port, and which are consistent with the general vicxn and objects
of the instrument, — for that narrow construction which would
cripple the government and render it unequal to the objects for
which it is declared to be institated, and to which the ]>oweTs
320
COXSTITDTION Of TRE OKITQ) STATES. [bOOK til.
/
given, as fnirly understood, render it competent, — then we oan-
Dot perceive the propriety of tbis strict coaatniction, nor adopt
it as the rule by uliich the Constitutiun is to l>o expounded. As
men whose intentions require no concealment generally employ
the words which moat directly imd aptly express Uie ideaa they in-
tend to coiivfv, the eulit^liteiied patriots who framed our Constita-
tiou and the people who adopted it miut be uudcnitood to have
employed words in Uieir natural sense, sjul to have intcnde<d
what they have Bsid. If, from the Empcrfcctiuu of human lan-
gutigc, thurc should he serious doubts respecting the extent uf any
given power, it is a well-settled rule that the obje>et8 for which
it wus given, especially when those objects are expressed in the
instruiuent itttclf, should have great inllueiice in the construc-
tion. We know of no reason for excluding this nile from the
present cose. The grant does not convey power which might be
benelicial to the grantor if retained by himself, or which can
enure solely to the beuetit of the grantee, but is an investment of
])ower for the general advantage, in the hands of agents selected
for that purpose ; which power can never be exorcised by the peo-
ple themselves, but must be placed in the bands of agents, or lie
dormant. We know of no rule for construing the extent of such
powers, other tlian is given by the language of the instrument
which confers them, taken in connection with the purposes for
which they were coulerred. " ' (a)
> Stv ■!*» Id. S2!, Mid Hr. Oikt JuKtiM lUnUl'f ofdatoa b Ogplea v. aumdrnv
11 Whet. It. 332.
It bai b«tfi ittnufctd bjr Pnaulmt J. Q. Adanu^ tlud "It n a cumntluKa ithicli
inll nol eatufe th« obKmtiaa of a pUJlaMpkiial kulcffkii, that tht Moatnutlv*
]iait«n of tbo u^iMttl KMvmmont kav* beca itrrtched to tbdr txbttoat ttndon by
llial iwrty, whM In ]x>n*r, which Iim ban moil Uiidtt]; fctnpalMi ef th* ttata
•rnerrijpily wlivn uiiiuvratsd with At autkarftjr of th* Ualou tbfBiHilTM.' II* widi,
"of theaa incMuistciidt^ our two gtrtt partita caa haro little to n; in rrymil of
ouih other." Wttbaiit ioqiiiring into the jottiM of th* rctDacli in grttml, it ma; be
tnif tfatod that the cmbaTgo of 1 907. and Iho aJmbtfoM ot LaufaiBiw into tbo Dnion,
we veiy atilkJBg iUaitntion* of tha appUcetlan of eooatnictiiniiMcen.
(a) "If WD have a doubt r*lati*e to
any pw**, »« «n|iht m4 to sntda* it,"
WW th* diclanlka of Mr. Edwud Uv-
iiigrtiHi,a*ani«a]b«n>rO(aigreai. Hnut't
lib ef LJTiBgtMi. 88S. Thii^ b« a
marim In coMtitatiom] gartrnmaa, had
the approval ef Hr. JcHmon. In th*
IM at Louhlana, bovcver, be did not
dmy (hat in liit ofiialoa Iw ma «i«rcb!ng
a powtr aot oonfenvd by the CanaUtutian,
and at firei ti« ioolud to an ■■ewlwiwt of
the Comtitation to ratUV the aoqrinUos.
So* letl** to Mr. DteelMMrids^ * JcBtf
ioD*« 'Woa^, COO, and to LfaKoIn, Id.
GM. Rut «unly no *nch ratttEatkn wm
tiy. A iMiier Ea Sonthem ofdniona
CB. T.]
■uus or n
821
§ 419. IV. From the foreg^oin^ cAngld^rations we deduce tlto
' conclusinn that, sh s franu! or ftiitiiaiiic-iitA! law of govvniiiivnt,
th« ConBlitution of the United Stat<>s U to receive a rcwonable
^interpretation of ita lanifiiaee and its powers, keeping in view
the (>l)jectfl and purpoaoa far wbi<:h those powers were conferred.
By a rcHAonalile interpretation we mean, that, in case the words
are snswptible of two difft-n-nt senKca, the one strict, the other
more enlarged, that should be adopted which is mofit consonant
with the apparent objects and intent of the Constitution; that
wbii'h will y:\vv cfBeacy and lorct- aa a ffovemmrHt, rather than
that which will impair its operations and reduce it to a state of
imbccilit}-. Of course we do not mean that the words for this '
piirpotse arc to he strained bcjond their common and natural
Aeuse, but, keepin;; within that limit, the exposition is to have a
^iair and just latitude so as on the one hand to avoid obvious
mischief, and on the other hand to promote tho public good.'
§ 420. I'his consideration is of g:re-at importance in construing
a frame of government, and d fortiori a frame of government tlie
free and voluntary institution of the people for their common
benefit, security, and happiness. It is wholly unlike the case of
a mnnieipal charter or a private grant in respect both to its
means and its ends. When a person makes a private grant of a
particular tiling, or of a licemie to do a thing, or of an easement
for tlie exclusive benefit of the grantee, we naturally confme the
> 8m Ogilm r SmuIm^ 12 Wheat B. SSS, 0[4ii!on <i Mr. Chitt JctUM
MmiImII
' tW Mxl ffiwnllon W pi«wUil th«
lUng view xery clMrly: "It ma
1 U> n^ Out tlu! tlniUd Stu« gov.
UEUt MuM not ac^ain tcrritorr hf
OMhaH or b^ am. a* mil la any otlwr
Dual wnntgaty va Milh. Vw* ««
I b* duuMMiibcd in onr limit*, and not
b* anawfd to nwke the necEailj «l
ontk* tike tlwt o( Uw UiMiiipfi Binr
oar own p CmU ctbrr nailans t>k« t«Rl-
Uiry \iy anniv to «>rorM imlenuiitj-, or
pMthlii' tt for ttw aka of gioKe and
Mrfeljr. ud a Mantry tlks Uia United
SuUa b* obl%*d U> fftifi ia ooneiiod
boondariM, and b* tmn^ to death. It
might tia, for wast cf tha pomr of txpan-
tloB t Ko : Um Prvidant tad Saute bad
VOL. I.— SI
th« Iraty-maklng pcwrr. and tlM Con-
j(rtM «M •ipTvuly Kivm Uia powtr 10
paaa all lam BiMwaty to carry Ittu
poiKr, and all otbar po««n tmIpI in tlM
ggwtiMDm^ into rxfculxm. TliU poser
of aMivMUoD and Mpannon t> au ahio.
luuly BcoMMry (lovar, wiling ttvm tha
vvty exUtanoa of avary natio*, and naan-
tially vital to «nr Uiitilutioni. tapable of
liaaiing, lllw Atli^ a vortd in tbdr eta-
bnw* of ftaadon. Th* ttivtata Slataa
could >ot acquire tbe tarritary ; and if
C<uignM mold not, tha progna* of civil
Ilbrrty HatU wm coDitraJMd and Moppnt
within our Infant dimenaiana.'' II. A.
Wlw, TnatiM on Terrlicrlal Oavtrantiii
and AdnlMtai of K«> Buiit. 67. C.
822
CONSTITUTION OP THB tTKITEO STATEa. [bOOK HI.
teroiH, however genernl, to tho objeot« clearly ia the rieir of tbo
parties. But ercn in sueh cases doubtful woi'ds vithin the evope
of those objecta arc construed most favoraliljr far the grantee,
becaiiae, though in dorog;ation of the rights of the frraator, they
tro promoti^'e of the gt^nerel rights aecured to the gruntc«. But
vhcro tho f^rsnt enures solely and exclusively for the benefit of
the grantor himtmlf, no one would deny the propriety of (riving
to the words of the grant a benign and litvpral interpn-tution.
In cftses, however, of ]>i-iTate grants, the objects generally arc
few; they are ccrtnin; they arc limited; thcr neither rwiuirc
nor look to a. variety of means or changes which are to control
or modify either the end or tho means.
§ 421. In regard also to municipal charters or pnblic grants,
similar considerations usually apply. Tliey are generally deemed
reatrjctive of tho royal or public prerogative, or of the common
rights secured by the sctirnl orgnnixation of the govprnment to
othpr individuals or communities. They arc supposed to be pro-
cured, not BO much for public good, as for private or local ood-
venience. They are supposed to arise fmin personal luilicitatioa
upon general suggestionii, and not ex etrta cati*a, or ex mero
motti of the king or govemincut itself. Henc« such charters ore
often required by the mnnictpal jurisprudence to be conatmed
strictly, because they yield aoniething which is common for the
benefit of a few. And yet where it is apparent tliat they proceed
upon greater or broader motives, a liberal exposition is not only
indulged, but ia encouraged, if it manifestly promotx^ tho pub-
lic good. '(a) So that wo see that even in these cases commoD
senae often indicates a dopartnrti from a narrow and strict con*
struction of the terms, though the ordinary rotes of men munici-
pal law may not havo favored it
§ 422. But a ooastitution of government, founded by the peo-
ple for thenuttlvca and their posterity, and for objects of the most
momentous nature, for pcr]K.-tual union, for the eetnbliitbment of
justice, for the general welfare, and for a perpetuation of the
blesainga of liberty, neocsaarily requires that every interpretation
of its powers should have a constant reference to these objects.
No interpretation of the words in which those powers are granted
■ Sm Giblmu «. OgdfBv, 0 Wbw. R. 1, ISO.
(t) Fvrrint P. CheMpaikt A Ddsom Craal Co., P H««. ITS i Ut BfaghanUo
Btiip. * Wdt. SI.
CH. T.]
BVLES OP I!CrrRPRCTAnO!>.
328
can Iw a soanci one vhich narroim doim their ordinary import
BO aft to defeat thoBe objccta. Tliat would be to destrov the
Bpirit and to cramp the letter. It has been jnstly dwcrvcd that
*'the CoDBtitotion unavoidably di>alB in f^ueml lanii^uge. It
did not suit the purpUHCs of thu pL-ople in framing tliis great
churtor of our libcrtiL<s to provide fur miouto Bpecificfttion of Ita
{wvurs, or to dtrvlure the means by vhich those \mven should bo
carried into execution. It vas for«Men that tt irmild be a peril-
OQsand diRicult, if not an impracticable task. The instrument
vaa not intendwi to proride merely for the exigencies of a few
years, but va» to endure throng a long laptte of ages, the events
of which were loclced up in the inacratablo purposes of Provi-
dence. It could not be foreseen wbat new changes and modilica*
tions of power might b« indisppniiable to efToctuntc Uie genenkt
objccta of tho charter, and reatrictiona and specifications which
at the pi-pspnt might spcra salutarj- mieht in the end prove the
overthrow of the system ita^lf, Ilonce ita powem are cxjiresscd
in general tcrmii, leading the U-gislature from time to time to
adopt its own means to cffectualo legitimate objecta, and to
mmild and m'>d(;l tlio exercise of ita powers as its own wisdom
and tho public interests should require."' Language to the same
effect will be found in other judgments of the iiaron tribunal.'
§ 423. If, then, we arc to give a reasonable conatmction to
this instrument as a constitution of government estaltlifthed for
the common good, wc must throw aside all notions of subjecting
it to a strict interpretation, as if it were subvcmivc uf tho great
interests of society, or derogated from the inherent sovereignty
of tho people. And this will naturally lend us to some other
rules properly belonging to the subjoct.
§ 424. V. Where the power is granted in general terms, the
power is to be construed as coextensive witli the terms, unless
some clear restriction upon it is deducible from the context
Wo do not mean to assert that it is necesaanr that auch restric-
tion should be expressly found in the context It will be
sufficient if it arise by necessary implication. But it is not
sufficient to show tliat there was, or might have been, a sound or
probable motive to restrict it A rcitriction fonnded on conjec-
ture is wholly inadmisgibte. The reason is obrioas : the text '
> Hant«r n. JUrtin, 1 Vbol. H. SIM. SS0. 337.
■ See Oibbou v. Opim. > WIuU. B. 1, UT. he., S2S, 4e.
324
OOXSTnTTIOS OF THE CSITED STATES. [bOOE HI.
adopted bj the people in itB obvious and general senae. We
hare no means of knowing that any particular gloss short of this
sense vas cither contomp1ttt«d or approved by the people; and
such a gluss uiii^t, thuui:)i sutisfactory in one Statv, hare bi-en
tho rcry ground of objection in another. It might hav« formed
a motiTe to reject it in one and to adopt it in anotlier. Tho
sense of a part of the people has no title to bo deemed the sense
of the whole. Motives of St*te policy or State interest may prop-
erly have infiiienco in the question of ratifying it; hut the Con-
stitution itaelf mii»l )>e expounded as it standfl, and not as dmt
policy or that interest may seem now to dictate. We are to
oonaCraei, and not to frame, the instrument.^
§ 425. VI. A power, given in general terms, ia not to be re>
stricted to particular cases merely because it may be susceptible
of abuse, and if abused may lead to mischievous consequences.
This argument is often used in public debate, and in its cummoQ
aspect addresses itself so much to popular fcura and prejudices
that it iusonsibly acquires a weight in tlic public mind to whioh
it is nowise entitled. The argument ah iiuMttvementi is suffi-
ciently open to qnestion from the laxity of application as well as
of opinion to which it leads. Bnt the argument from a possible
abuse of a power against its existence or use is in its nature not
only periloiHi, but in respect to governments would shake their
very foundation. Every form of government unavoidably tn*
eludes a grant trf some discretionary powers. It would be wholly
imbecile witliout thom. It is impossible to foresee all tho ex-
igencies which may arise in the progress of events connected
with the rights, duties, and operations of a government. If
they could be foreseen it would be impossible ah attt« to provide
for Lhem. The means must be subject to perpetual modihcation
, and change; Ihoy must bo adapted to the exisiting manners, hab-
V its, and institutions of socie^, which are never stationary; to
the pressure of dangers or noceanities; to the ends in view; to
general and permanent operations as welt as to fugitive and «z<
traordinary emergenciea. In short, if the whole society is not
to bo pcvoiutioniied at every critical period, and remodelled in
every generation, there must be left to those who administer the
governmeat a very largo mass of discretionary powers, capable
of greater or less actual expansion, according to circumstances,
) 8«c Stst^ *. CroraiaAUd. < WImM. B. WXVA
en. T.]
BDUS OP INTEBPSETATION.
825
/
and MufTicionlly flexible not to involve the nation in u(t«r destnie-
tion from the ri(ci<] limitations imposed tipon it by-au improvi-
dent jmloiwy. Every power, however limited, a» well ns broad,
is in its own natiire flusceptihle of abuse. No constitution can
, provide perfect guai'ds against it. Con^dence must be reposed
somewhere, and in free goremmenta the ordinary securities
\again8l abuse are found in the responsibility of nilere to the
people, and iu the just exercise of their elective franchise, and
'nltimately in the surcreigii power of change belonging to them in
cases roquiriu); extraordinary remedies. Few caiies are to be
supposed in which a power, however general, will lie exerted for
the permanent oppression of the pcoplix' And yet cases may
easily I>c put in which a limitation upon eueli a {mwcr might be
found in practice to work miacliief, to incite foreign aggression
or encourage domestic disorder. The power of taxation, for in-
stance, may bo carried to a ruinous excess, and yet a limitation
upon tliat power miglit, in a given cose, involve the destruction
of the independence of the country'.
§ 42G. VII. On the other hand, a rule of eqnal importance is
not to eniai^ the construction of a given power beyond the fair
aeopc of its tenns merely because the restriction is inconvenient,
impolitic, or even mischievous.' If it be mischievous, the power
of redrcsaiog the evil lies with the people by an exorcise of the
power of amendment. If they do not cliooae to apply the remedy,
it may fairly be presumed that the mischief is less than what
would arise from a further extension of the power, or that it is
the lc«8t of two evils. Nor should it ever be lost sight of, tliat
the government of the United States is one of limited and enu-
merated powers, and that a departure from the true import and
sense of its powers i»ptv tanto tlie establish mrut of a new consti-
tution. It is doing for the people wluit they have not chosen to
do for themselves. It is usurping the functions of a legislator,
> Mr JnMka JohnMQ. In d«ll«i»ring tha «p(alM «f tht ooort ia Aadenon g. Dmui
<« WttnL S04. ftM), WW tb* follotrii^ Mcpnutrt knKWffi: "IU Mm k Otoftei
that fttMnunent ema «xbt vithoot kaTing ib« •nrdt* ot iU*cnti««i MaMriiwK.
Pulilfe iKuri^ ^^ut tho >buM of ntcli diatrstion niwt ph* an raipinalbilitr and
•laiml »|if««U to pubUo •{qmbadoa. Wbcn all poinr i> deriml Tkob the pt<»iils,
Md p«blio ftuKtkaariM at ahort Intamla Atpo^ h at tbt fort of tbn p«pte, t» b*
TCHtmad agiun «alr at tbdr ova villi, Indlvbhul ftan maj b« aknnad b; iba i
■Mm of ImaginalifliD. bat indivUual Wbvtj oaa b« In Uttla dangtt."
* Sm Unttnt StaUa h faimc, t Cnack, SS8.
326
coKsrrrcnos op the dhited btates. [book m.
/
and deserting those of an expounder of the lu.w. A^^^icnts drawn
from inipolrcy or tncMivenienc'e ought here to be of no veigfab
The only Bound principle is to declare, ila lex tcripta est, to fol-
low, and to obey. Nor, if a principle so just and conclusiro (X>uld
be oTorlookcd, could there well be found & more onsafe guide in
practice than mere policy and convenience 3Ien on such uih-
jcctacomploxionnllydiffGrfromcuch other. Thu tuune men differ
from tJiemaelvca at different timva. Temporary duluaitma, prc-
ju(lic«ei, excitvmcntti, nnd objcctB have irniiiatiblc influence in
mere qucsliona of policy. And the policy of ono Ago laay ill auit
the wishes or the )>ulicy of another. The Constitution is not to
bo subject to such (liictutttiona. It ia to hare a fixed, uniform,
permanent coniatructioii. It Bhoiild be, »n for at least as luiniau
infirmity will allow, not de{>endont upon tlie paitsiona or parties
particular time*, bat the same yesterday, to-day, and forc^'cr.
I 427. It has been oh»or>'<>d, with great corrpctness, that al-
though the spii'it of an injilninieut, especially of a coiistitutioo,
is to be respected not less than it» letter, yet the spirit ia to be
collected chieSy from the letter, (a) It would be dangerous in
the extreme to infer from extrinsic circumstancea that a caae, for
which the words of an instrument expi-easly provide, shall be
exemptwl from ifa operation. Where words conflict with each
other, where the different clauses of an instnimt-nt iMsar upon each
other, and would be inconsistent unless the natural and common
import of words be variwi, {.-onatruction becomes neoeaaary, and
a departure from the obvious meaning of words is justifiableu
But if in any case the plain meaning of a provision, not contra-
dicted by any other provision in the samo iu»tniment, is to be
disregarded because we IrtHcvo the framera of thut instnuncnt
could not int«nd what tlicy say, it must bo one where the absurd-
ity and injustice of applying the provision to the case would bo so
monstrong that all mankind would, without hesitation, nnlto la
rejecting the applicjition. ' litis language has reference to a caso
iriiere the words of a eouBtitatioiial provision arc souglit to bo
reatricted. But it appears with eixual force where they arc sought
to bo enlarged.
1 SCarRls «. C^omitiwhMU, 4 WhMt R. 12S, BOS.
32a t Cactuaa a. Tu Saiby, M W«iul.
S81 i VjaAma >. Piwpl^ 18 V. V.
»1, 433, 477 : IVopU V. G>)l>slMr. 4
Ulck. Hi t St>t* >. SutoB, S 0«ld. tS3 ;
Dmurl* <n StatuH>, bf Poitw, 303, 203.
ca. v.]
BI:LFS op INTEHPRETATION.
82T
§438. VIII. Noconelructionof a giveu power i» to be allowed
which plainly defeats or impairs ita avowed objccta. I£, therC'
fore, the words are fairly suHccptilile of two iQtcrprctaliuiui, ac-
cording to thvir oummon aenae and use, the one ut which wuald
defeat OQO or all of the ohjocta fur which it wa« obviously ^iwn,
and the other of which would preHerve and promote all, the
former intcrpntutioii uuglit to Iw rejected, and the IntUtr he held
tlw tru4] loterpn-tation. This rule results from the dictat«a of
mere cumiuoii-scnso, for every ituitrument ought to be so con-
strued, vt Toai/i* viihal, quam pcreat,^ For iuHtanee, the Conati-
tiitioii confers on Congress tho power to declare war. Now the
word deetare has several senses. It may nicun to proclaim, or
publish. But no person would Imagine that this was the wholo
sense iu which the word is used in tliis oonaectioo. It should be
interpreted in the nense in which the phrase is luied among na-
tions when applied to such a subject-matter. A power to declare
war is a power to make and carry on war. It is not a tnero
power to make known au existing thing, but to give life and
effect to the thing itself." The true doctrine has been expressed
by tho 8u])rvnie Court; " If from the imfferfcrtion of humnn Um-
guage there should bo any serious doubts respcctiug the extent
of any given power, the objects for which it waa given, e8i>ecinlly
when those objects are expressed in the inntrumeut itaelf, should
have great iuflucnce in the construction."'
I 429. IX. Where a power ia remedial iu ita nature, there is
mnch reason to contend that it ought to be construed liberally,
lliat was the doctrine of Mr. Chief Justice Jay in Chisholm i'.
Oeorgia,* and it is gi-nerally adopted in the interpretation of
laws.* Bui this liberality of ex|)OBilion is clearly inadmissible
if it extends beyond the just and ordinnry aejine of the terms.
§ 4H0. X. In the interpretation of a power, all the ordinary
ud appropriate means to execute it are to be deemed a part of
the power itaelf. This results from the very nature and design
of a constitution. In giving tlie power, it does not int^-nd to
limit it to any one mode of cxerciBing it, exclusive of all othcm.
It must be obvious, aa haa beoa already suggested, that the
I Bm Bujcm'* AUidg. ButaU I. ; Viitel. B. 9, eh. 17. || »T to SSt^ »t lo «».
• Bm ^ «. n^cr, 4 Ul\. R. 37.
■ OibboM w. Ogam. 9 WliMt. R. 1, Ita, »«.
* S tha. B. 41*. • BuM>'( AWdK. SUUIa L 8.
828
coxsnrcTioN op thb mtrrro states. [book m.
means of cnrrying into effect the objectB of a power may, nay,
must be varied, in order to adapt theniRelvrn to the exi^Bcies of
the nation at different times.' A mode eflicacious and mieful in
one age, or nnder one posture of circnmatancea, may be wholly
Tain, or even mischierooa at any other time. Govormntnt pre-) I
8up|K)ec» the existence of a perpetual mutability iu iU own operJ \
atione on thoae who are ita subjects, and a perpetual flexibility in
adaptinii itnelf to their wants, their intercata, their habita, their
occupational and tlteir InfinniUea.*
> The FnfanUst. 1T«. ii.
* Th« rauMing of Mr. ChM Jiutltc HxnhaU od thi* Mt^eet, in UeCnnooll «k
MaijUnd (t niuat. 810), b m coftml Mul MtittmUirj, that «■ ituU roitBia to du
It *l \vjfe. After hiving mBukcd ih»t wonU tiavv ruioa* m«*m, »ai that what U
IIm tra* (onBtnirUon of uij lunl iu the CointilutiaD MUM Jppoad npoM the ratjtcl,
the oMitext, uul the intcDtioni of the people, to be gRlhMtd ban the iiwtnnMati bt
) jfoceedj thn* : —
"Hm •nlgfKt !• th« uwBtinn of thoe* gn»t fown oa wMch Dm mUu* of ■
BMko iwenlltlly dapemU. It iiiuet hitv« been ^« littantka «f than who g»T« iImm
powen^ to innuc, u far a* humnn pniilf nca oould imure, (htfa- bcMfcial aiuaatlafk
TU« Doold net be done by confiding Ibc choice of mruii to meh mmtm Va^Att, u aot
to leave it in lh« power of Congrm to adotit any «hi«h HOght be spfsafdUiv '^
vhich 1TCIV condudTc lo the end. Thii prorUIou U Budo in ■ OoMttUIJoa intended
to «Ddiir« for *gM lo eom«. ud, ciMMitiwndj, to h« adapted to lb* Taiteai (nta ol
' bilnan affairs. To hare pnscribed the nwHia tgr whioh govcnuMot (boaU, in all
futare titar, ciccute ita powm, would h*T* betn to ttutige mtjnlj the chacKter of
the inilrainuat aud giie it t3ie propcrtM of a Icgd oode. It woaU luve been an «■•
«iM allMnpl to praride, by imnalaht* rulaa, for ezlgencte*, which. If foreMrn at aU,
mot hate been M*a dimly, and whltli em be h««t protided foraa Iheyeeear. To
hare dtcbired that t)w ba«t mtmnt ahall sot be naed. bwt thoM alooe without wUch
the power given amiM be nugitloij, «««ld hare beca to deprire the legidatiiK «f the
■ fapeHtj to arail iteelf of ciperJ«iK% to «Mrpiae iti leMon, aad to aoeooiBodala it*
llgbbtion to cimnnatawM. If wc appiy lUa piBclpU of oontfnrtiim to any ef tbe
yvtem of tha gDvenmcati >e aliall Had It m pwnkioD* l« lu ep««atk«) thai we ahaU
be ocKDpelled to dtaeard H. The powtn rnted in Comgmt may earlaluJy be ouried
inio eteeutiou oitbenl pciMfifanig an oath of offioe. The jcmt lo exact thi* lecnritf
for the blthfol parfon*ane> of dn^ 1* Mt gi*(^ aor ia it indiipenaaUjr mcmmij.
The dWereal depmmnta nay b* eatahllabed. tazM May be inip«a»d aad eaOMMd,
I tmlm tad aarlM May be niaed and nuinUiaed ; and nwaty Bay be borrowad, with-
tint nqaMnf anoathof oSee. It ini^t be argoad, with m nnch planAQUy Motbtv
I iartdMlal penren hare becei ajBulad, thai the coormtioa mt nut uaniiadfsl «l thi*
tntiJeetiBa. The oath which niitht be exulted — that of Bdellly to lh« Cnwititvlioa —
ia fceanibed, a»d no other €B« be twjulred- Tet, he would be chu;^ with inanity
who ahonld ooalieid that the kgidatore ni^t no* *«pcndd, to the ealh dinoled \ff
the Coatfttnika, poA other ««th «f nlSea a* Ha wiadom ni^t auggeat
"So, with raifMct to the whoU panal code of the ITmited But«: wboiee attata the
^powM to poaUi ik caaaa not pvacrlbed by the RcMtUatloa t AU adoUt that tha fjor-
latnnaiat may l^tiwataty panhh any vloktioa of Ita law ; aad jst, thU it not anaong
CH. v.]
KULKii OP
tATtOW.
329
§ 431. Beaides, if the pow«r onlj- h giTen, v-ithout pointing
out the means, how are ve to ascertain that any one means U
esclusively within its scope rather than another? The same
course of reasoning which would deny a choice of means to exe-
cute the power would reduce the power itself to a nullity. For,
as it nercr could be domonatraled that any one mode in particu-
lar was intended, and to bu cscluBirely employed, and as it might
bo demonstrated that other means mif^ht be employed, the (|ucs-
tioD whether the power n'erc rightfully put into exercise would
forever be subject to duubt and coiitro^t'ray. ' If one means is
adopted to give it effect, and is within its »copc, because it is
apiiropriuto, how arc wc to cscaifc from tlie arjniment that an-
other, falling within the same predieanicnt, is equally wilhiu its
ticujKi ? If each 18 eciunlly appropriate^ how is the choice to be
made between them 1 If one is selected, how does that exclude
th* «niiiiim«t«d powmi of Congr***. Tlw right to t«brc« tlM nbMrvtuM of liir, bjr
pmiMhiag it* InftoctioD, night be deniod witli the nun pluiuUlity, brcnun it it
MqimMlj gjina in tome ouo. Conjirata ii cmpowcrBd ' I» provide lor the pauiibmcDt
of oottatvrftiliag lh« McaritlM M>d (nvrnit oodn et tfa* Cnitcd StalMv' and ' 1« dcAiiB
•ad paaiA pindM «Dd TtlonlM oomialtttd on th* hl^h ku, and olTineM ^iiiitt IIm
Uw of Mtioni;' Tin wevoni powtra of Coofftm OMJ «xi*t, ia m icr^ iin{Mt<<ct «tat«,
t« b« tUM, but tbtj may cxiit and Ik canicd into snention, althfuigli no pobli&nwnl
alMvU bo lalllrlMl in caiM wham tha right t« |niniili la not upmdy glT«n.
"Take, lor tiaMiple, thn |>i>wvt 'to tmablith |icM-olHc<a and pMt-roMb.' Tht*
power ia cxeontcd bj the aingiii xt of makittg the CBtntilislinK-ut. But, from lU* ba
bMB hifcmd the power and dntf of cnrrjiug the mail iLlong the paii-roaJ, frtm uio
|Mat«IBM to aaotliM. And fn>in lbi> implied po««r haa again hnai infurrad lb* risl>t
to pqslifa thooB who atcal l«tt«n tnia th« pcrat.oiflc* or rob tb« null. It Mtjr b« tali,
with aome plaonbilitjr, that tli« right Ui mrr; ihv Dini), snd to piiiiL«L thoM wlw rob
it, ia 1104 i»diq>«(uah)]r neoeanry to tba eatalilLdimeiit ul a iKKiI>oflii:e uud pori-rwd.
Tbix rifht b indted Mwntial to tiM bweSdal ocerciw of the povcr, but not lodii*
pWiMUy ucMau; to It* azlatonoa. Bo, of the pnnlihnirnl of tho crinua of (tcaUn^
or Udl^ing a mntd m proraaa of • oonrt of ih« Utiltnl liuttM, or of jwijiuy Ija auck
eo«rL To pvaUt UiMe offeaoM h oaruiuly tonduclTo to tlie due odmiaiantion of
Jwtlce. Bat eomU najr mia^ and vmf daeide tbt cauaaa l>raught before them, Ibragh
tueh eriaaa Mcap* |nnlihnuaL
**TW bantfnl lallitnKO of titl* narrow canRtractlDn on all tha oporatkaa of tb*
COTpninaent. and thr aliaotnte iinjiiwdeaUUtj of nialDtalaln^ it aitlMal rmdaring th«
goTcrtunent incomprttat to lb great oluBctl^ mi(!bt be illuatnl«l bjr wmierDua ex-
amplea dnwo ttom tho OeauthatMa and (rmn onr law«> Uio pod iinae <t tht pahlle
ha* proAoniKad, withont iMiltatloB, tkat tha powet of panlduBMit appartabia 1o *ne-
ntj, and mair be exerrikcd, whenever the aoroelfn haa a right to act, aa inciduta]
Ilia coMlitnlioaa] poweri. It ia a meana for carrTUg into execution all aoeneigii
a, and may be nied, allbouKh sot iBdi>[«naaU<r »tctmttj. 1| b a right ind-
dental to the penrer and eondiuliv to it* tenefabl utrdM,"
> 8m Unltod fttatea v. Fither, S Craneb. iU.
8S0
coNsnTcnos op thb ostted biatjs. [dook iir.
all others ? If one U uioro nppropriute at one time, aud another
at onoUicr time, wliiTC ia Uio rcstrictiun to be found which al-
lowt) tbo Olio luid (luniCH thu uthcrT A power granted in a franio
of ROwmmvnt i» nut contemplated to ba eshausted in a, single'
exertion of it^ or unojtatu. It is intended for froo and |>erma-
□entoxercise; aud if tbu discretion of tliv funetionaries who aro-
to uxercise it is not timitod, that discretiun, cspeoiully as those'
functiouaries must necvssaril]' change, most bo coextensive with
the [Mwer itself. Take, for instance, the power to make war,
In one ago, this would authoria; tbo purchasit; aud employment of
the weapons then ordinurilj usod for tliis purpose. Bat sappoM,j
these wcapoDH are wholly laid uitide, and ulbors suhatituted moro
eflScivttt and powerful, is the irovemment prohibiti-d from cm-
ploying the new modes of offenco aud defcncu ? Surelj not. Tbo
tnventioa of f^unpowder supenMMlvd tho old mode* of wiirfurc, and
may perhaps, by future iuvcntioua, be stiporxeded hi its lum.
No one can seriously doubt that tJie new mo<Ic« would be witMa
the soopG of the power to make war, if Ihcy were ap;>roi>riate to
the end. It would, indeed, be a most extraordinary mode of in-
terpretation of the Constitution, to giro such a rostrictire mean-
ing to its powers as should obstruct their fair operation. A power
being given, it is the interest of tlie nation to facilitate its exe-
eution. It can never be their interest, ami cannot be presumed
to be their intention, to clog and embarrasa its execution by
withholiiing the moat appmpriato meomi. There can bo no rea-
sonable ground for preferring that construction which would
render the operations of tho gorcrnment difficult, hazardona, and
expensive; or for Imputing to the frumcrs of the Constitution a
design to impede the exercise of its jiuwera by withholding a
choice of means.*
§ 482. In the practical application of government, then, the
public functionaries miwt be lelt at liberty to exercise the [wwors
with which tho people by the Constitution and laws luiro intnuitcd
tlK'HL They must have a wide di»cn>tion as to (lie choice of
muuus; aud the only limitation upon that di»rrction would seem
to bo that the moans are appropriate to the cud. And this must
naturally admit of considerable latitude; for the relation between
the action and the end (as has been jwitly remarked) is not al-
ways so direct and palpable as to strike the eye of every ob-
> UtiCaltoek r. HMyUad, 4 WIimU R. 81«, tas.
CH. v.]
UULES or INTlUtFBKTATtOK.
831
Herv«i-.' If tlie end t>e 1(>gitima(e snd vilhin tlie scope of the
Cnntititutioa, all tlio meaiui wliich are appropriate, aud wkich
are jilainlj adapted to that end, and which are not probibit««l,
may bo constitutionaJljr entployvd to carry it into offecL' When,
then, it ia asked who is to judj^ of the nccciiBity and pro]>riety
of the laws to bo jiaasvd for cxocutinn the powers of the Union,
the tnio answer is, that the nutiouul iForci-nmvnt, like every
other, aiiut judint in tlic first instance of the proper exercise of
its powers; and its constitucuts in the last. If the means are
within the rcadi of the power, no other department can imjuirQ
into tlte policy or com-enienoe of the unc of them. If there bo
An ezocM by overleaping th« just botiudary of the power, the ju-
diciary may generally afToi-d the prn[>«r relief; and in the last
retort the people, by ndojiting siieh utoa^nrcs to redress it as the
exigency may sug^t and prudence may dictate'
§ 43-I. XI. And this leads ua to remark, in the next place,
that in the interpi-ctation of the Const itut ion there is no solid
objection to implied powers.* Hod the fecultiea of man been
competent to tlje framinp of a system of ijovomment wliii?h would
leave nothing to implication, it cannot be doubted that the effort
would have been made by tho framers of our Constitution. The
fact, however, ia otherwise. There is not in the whole of that i
admirable instrument a ^rant of powers which doce not draw .
after it others not expressed, but vitAl to their exercise ; not aub<
stantivo and inde]>eQdeut, indeed, but auxiliary and subordi- '
nute.^ There is no phrase in it, whicli, like the Articles of
Confederation,* cxfludea incidental and implied powers, and
which requires that everjthing granted shall bo expressly and
minutely described. Even the tenth amendment, whieli was
> 8m tlia murlu «f Hi. Jutioe Jakiuon (> dtUnriiig Ik* opinloa tt Aa oonn la
Aailit*M V. Da>n, t Wltmt. H. 204. SM ; tTnltad 8uUi> t. TUbt. 2 Cnnch. 358.
> M<;<--<ilWk «. MurUnd, * WhMU BL 31*. 400, 410, 421, 423 ; Uaitod SUh* >.
Fuher. 2 Cnook, SGS.
> Th* P«il*r«U«t, Ka4. 33, 44 ; HcOollocU •. MuyUnd. 4 What. K. 3Ii!. 4«3.
* Ib llio dilouHBona u to U» ooiutitutioualltf of llw lUnk ol Ih* Vaiir^ State*, i>
Um mUm4 of PnAleiit VMtiliigtai^ upon tb« ortgia*) MUbUthaoil of Uw Buik,
Umn wm • Imk* naS" of ugnoMMt, pro et tenira, bi RvpMl to iBpHn] pomn. Tho
milsr will tnil a MiiDinMy of tbo iMiMng noiri oa Mth Mds la th* fifth vohitta of
UknUl't Ufo of Wulitii|[toi>, Apji. p, S. nut* 3. Ac ; 4 Jdbnao'ii Con*«p, S38 ttt
GSII I ■■■•] In HainUton'i Atgomfat oo Conotltutioiwlitf of Dank, 1 lUmilloa'* Work*,
lU (« lU.
• Aflibnun v. Dnan, 3 yn>M. »4. 2M. • Artkla *.
coxs-nTimos op the ustted stj^tes. [boos ni.
framed for the purpose of quieting the excessive jealousies which
had been excited, omits the word "expresgljr" (whidi vaa con-
tained in the Articles of Confederation), and declares only that
"the powers not delegated to the Cnitcd States, nor prohibited
by it to tho States, arc reserved to the States respectively, or to
the peopU";" thus tcaving tho questiun, whether th« particular
power which may become the subject of conk-st has been dele*
gated to the one government, or prohibited to the other, to de-
peud apoit a fair construction of the whole in«tmmonC The
men who drew and adopted this amendment had experieuced the
embarrassments resulting from the insertion of this word in the
Articles of Confederati(«, and probably omitted it to avoid those
embarrasamenta. A oonstitntiou, to contain an accurate detail
of all the subdivisions of which its gtcat powers will admit, and
of all the means by which these may be carried into execution,
wontd partake of the prolixity of a legal code, and could scarcely
be embraced by the human mind. It would probably never be
understood by the public. Its nature, therefore^ reqoifV« that
only its great outlines should be marked, its important objects
designed, and the minor ingredients which compose those objects
be deduced from the nature of those objects themselves. Hiat
this idea was entertained by the framers of the American Con-
stitution, is not only to be iufi>rred from the nature of the in-
strument, but from the language. Why, else, were some of the
limitations found in the ntalhaeotioa of the first articU intro-
duced I It is al»o in MOM degree warranted, by their baring
omiued to use say lestrictiTO tern which might prevent its
reoeiviag s Mr and just tutefpetatioa. In eonsiJertnit this
point, we shontd never forget tiiat it is a constitotiflQ wt are
expounding. '
§ 4^ The reaaoning ot the Federalist is to the ssas iflMt.
Every power which is the nwsas of carrying into ellfct a giten
power is implied from the very nature of the onginsi grauL
It is a neeeassr; and nnavoldable impltcatioa from the act o(
coostitating a govenunettt sad vestiug it with ortain specified
powefB. What is a power but the ahiU^ or iscnlty vi doing a
thing? What is the ability to dosAiOfebnt die power ef employ-
jng 0»B means necessary to its ezeevtiflB 1 What is a le^slstiw
■ hv Mr. ChW Jwtaf MwiMT. i> IbCaBaA •. MhvImL t V^mS. L Ut,
>«siwMr,m.
CH. v.]
RIJLGS OP IKTEttPlEETlTlOtf.
S88
^
power, but a power of mftking laws ? What are the means to
execute a Icgislatite power, hiit laws?' No axiom, indeed, ia
more clearly efltahlished in law or in n*n»on than that where the
end is re^iuired, the means are atithorixed. Whenever a general
power to do a thing in given, every particular power neoesaary
for doing it is included. In every new application of a general
power, the particular powers which are the means of attaining
the object of the gvnoral power must always neoeesarily vary
with that object, and be often properly roried, whilst the object
remains the same.' Even under tlic confederation, whore tho
dvk'^lion uf authority whs coiiriu<.-d tu expret* powers, the Fed-
cralist remarks that it would be caay to show that no importaat
power delegated by tlie Articles of Confederation had been, or
eoold be, executed by Congress, without recurring more or les*
to the doctrine of conatnictiou or imjitication.*
/ § 485. Xn. Another point, in r^^rd to the tnterpretaiion of
' the Constitution, rei'iuires us to advert to the rules applicable to
caaca of concurrent and exclusive powers. Id what cases are the
powers given to the general goverument exclusive, and in what
cases may the States maintain a concurreot exercise? Upon
this sabjcct we hare an elaborate exposition by the authors of the
Federalist;* and as it involves some of the most delicate quea-
tions growing out of the Constitution, and those in which a con-
flict with (he States la most likely to arise, we cannot do better
than to quote the reasoning
f 486. "An entire consolidation of tJ>e States into one com-
plete national sovereignty would imply an entire subordinatitMi
of the parts; and whatever powers might remain in them would
be altogether defiendent on the general wilL But as the plan of
the convention aims only at a partial union or comwUdatiun, the
Statu governments would clearly ii>tain all the riglits of sover-
eignty which they before had, and which were not, by that act,
ezdimctli/ delegated tu the United Slates. This exclusive dele-
gation, or rather this alienation of State sovereignty, would only
exist in three cases; where the Constitution in express terras
granted an exclusive authority to the Union; where it granted,
in one instance, an antbority to the Union, and In another pro-
hibited the States from exorcising the like authority ; and where
■ Tin Fedoralbt, Xo. S3.
■ U. No. it.
« Id. So. ii.
« Id. No. aa.
884
CONSTITDTION OF THE URITED STATES. [BOOK 111.
it granted an anthoritj to t3ie L'nioii, to which a aimilAr authoritjr
in the States would ho n)«oluteIy and tntally ctmtradictorif and
repHffnoHt. I U8« thme tcrma to diatinguish this luat i-ase froc
another vhich might appear to rcaombtc it, but which would,
fact, be OHaentiallv different: I moan, where the cxercioc of oon*
current juriwlictitm might I>e prtKhictivc of oc^iasional interfer- '
encea in tho p<fticg of any branch of adminintratiim, but would out
imply any direct contradiction or rept^ancy in point of coosti-
tutioniil authority. Tbfiso three caaoti of excluflivc jurisdiction tn
the federal frorernment may bo oxempUficd by the following in*
stances. The last clause but one in the eighth section of tito first
Article provides expressly that Congress shall exercise 'luvVwstr*
leffi»lation ' u\xr the district to be appropriated as the scat of gov>
ernment. This answers to the first case. 1^0 first clause of the
same section ompowors Congress ' to lay and eolUet t/ue», dutttt^
importi, and excitt*;* and tlic second clause of the tenth section^
of the same article declares that 'mo State thaU, witliout the con-
sent of Congress, lag any imposta or dutiet on imports or export»f i
except for the purpose of executing its inspection laws. ' Hence
would result an exclusive power in the Union to lay duties^ on im*
ports and exports, with the particular exception mentioned, fiat
this power is abridged by nnnther clause which declares that no
tax or duty shall Iw laid on artieles exiwrted from any State; '
in consequence of which qualilication it now only extends to the
dutiet on imports. Tliis answers to the second case. ITie thl
will be found in that clause which declares that Congress sballl
have power * to establish an uniform rvU of nataraliiation
throughout the tJnited Statea.' This ranst necessarily be excln-
sive, because, if each Htate had power to prescribe a dlitinet
rule, there could be no uniform rufc " Ute oorrectnras of these
rules of intepretation baa never been controverted, and they bare
boon often recognized by the Sapremo Court.'
§ 437. The first two rules are so completely self-evident that
every attempt to illustrate them would be vain, if it had not a
tendency to perplex and confuse. The last rule, namely, that
which declares that the power la oxeluaive in the national gor-
emment where an authority is granted to the Union, to which a
1 Sm HotutMi ». Moon, S Wlwkt & 1, S3; S4. 18 ; O^lm v. GiblMni; 9 VnuAi
R. 1. IM, Sidy ttS. OSS; StUfd* *. Oownlnaliltia, 4 Vbeat. B. 113, 1*^ IMf^
Ogdni B. 8MiulN*k 11 VbMt. 1, S7S, SOT, 9m, 331, SS&.
CB.T.]
BCLES OP ntTERPSBTATtOX.
885
similar authorit;^ in the States would >» abaolutflr and totally
Coulrudictory niid repugnant, is that alou« which mar he thought
to require coniin«nt. Thi« rule seems in its ovm nature as little
SUBC«]>tib1e of doubt as the others in reference to the Constita-
tion. For, since the Confttitution has declared that the Constitu-
tion and laws and treaties in parsuance of it ehall be the supremi'
law of the land, it would be absurd to say that a State law repug-
nant to it might have concurrent operation and validity, and es-
pecially as it is expressly added, ** anything in the Constiltitiun
or laws of any State to the contrary notn'ithstanding." Tiic re-
pugnaucy, then, being made out, it follows that the State law is
Just as much void as though it had been expressly declared to be
void, or the power in Congress had been expressly declared to be
exclusive. Every power given to Congress is by the Constitution
necessarily supreme, if, from its nature, or from tlie worrls of the
grant, it is apparently intended to be exelusive ; and is as much so
as if the Stales were espressly forbidden to exercise it,'
§ 4:18. The principal diflicult>' lies not so mnch in the rule, as
in its application to particnlsr cases. Here the field for discus-
sion is wide, and the argument upon construction is susceptible
of great modifications and of ^^ry various force. But unless
from tJie nature of the power, or from the obvious resulta nf its
ojKTations, a repugnancy must exist, bo as to lead to a necensary
oonclusiou that the power was intended to be exclusive, tlic true
rale of interpretation is that the iMWcr is merely concurrent.
Tliua, for instance, an affirmative power in Con^'sft to lay taxes
is not necessarily incompatible with a like power in the .States.
Both may exist without interference, and if any interference
should arise in a {torticular ease the question of snpreniacy wo«i!d
tnm, not upon the nature of the power, but upon supremacy of
right in the exercise of the power in that cose.' In our complex
I system, presenting the rare and difficult scheme of one general
igovemmont, wh'ise action extends over the whole, bat which
^possesses only enumerated powers, and of numemns State gov-
eninients, whicli retain and exercise many powers not delegated
to the Union, contests respecting power most arise. Were it
> Statgk *. CWwufmUiUl, 4 VWt B. Itt, 1»S, l*S ; Oiliboiu « Ogd«a, 0
'WliMtB. 1, lH,ft«.
• Tbs PolcnlUt, Ho. SI ; OiVboM «. Ogdtn, 0 VLnl. K. 1, IBS, IM to 109 i
UcCuIl«cb «. UwyUad, t Wti«>t. R. SIS, 4U.
886
COSSTITCTIOJJ OP rne tTNITED STATES. [BOOK HI.
cren otherwise, Uic measures taken by the respective governments
to execute tlieir acknowledged powers would be olten of the s&me
description, and mi^t some time interfere. Thia, however, docs
not prove that the one is exercising, or has a right to exercise,
Uio powers of tho other.'
$ 439. And this leads us to remark that, in the exercise of
comnirrt-nt jwwcre, if there be a coD6ict between the laws of the
Uiiiuii and the tun's of the i^tat4.-!i, tbc former be I uj; supreme, the
latter must of course yield. The possibility, nay the probabili^,
of such a conflict wm foreseen by the fatuners of the Conatitotioo,
and was accordingly expressly provided for. If a State pass a
law inconsistent with the Constitution of the United States, it is
a mere nullity. If it pass a law clearly within its own constitu-
tional powers, still if it conflict with the exercise of a power given
to Congress, to tbo extent trf the interfereuce its operation is
suspended; (or in a conflict of laws that which is supremo must
govern. Therefore it has o(t«u been adjudged that if a State
law is in conflict with a treaty or an act of Congtess, it becot&es
ipto/acto inoperative to the extent of the conflict'
§ 440. From this great rule, that the Constitution and laws
made in pursuance tliercuf are supreme, aud they control the
constitutions and laws of the States, and cannot bo controlled by
tlieni, — from this, which may be deemed an axiom, other aux-
iliary corollaries may be deduced. In the fir«t place, that- if a
power is given to create a thing, it implies a power to preserve
it Secondly, that a power to destroy, if wielded by a different
hand, is hostile to and incompatible with this power to create
and preserve. Thirdly, that where this repugnAncy exists, the
authority which is supreme must control, aud not yield to that
over which it is supreme.* Consequently, the Itiierior power
becomes a nullity.*
I Glbbnw K Ogim, « VbHt B. 1, Ml. tb. ChMetlkr Kmt bM gim Ob
iriwle «alj«)t tl «wtoir> aoil wuean—t power • thote^k umtaulott ; ud ih*
hmII wOl be fbind,^Mat Mj Majad Is U* Uuami OaaoMbria^ Ltenit IS. ) Ijmit,
Oamm. Ul U K9. ti w^L yf^ S$l la tU.
* WuB •. UyltM. S lUL l»g ; OiUnnt •. Ofdca, S VbML B. I. Zl^ SU : Ke-
OOhtk >. Muylud, i VhMt. a SIS. 4M, OM. US to IW; a«artM «L Moon. •
VbwL B. 1, ai, !!,<». fil. n, S« ; Suigb •. CraniMltUd. t WIukL K. 1. IM^
IMi OoUm b. Priaoe,! Vuh.CC. ft. SIS, mini Tadmlut, Sa.n; Bm«s
r. H«f7h»d. IS WbML R. 41S. tS».
> MoC>llMlkK)lMTla4.UVWt.IL«<, HI
« Scnili «. CMndMUiU, « Wbtf. B. 1. IM.
CO. T.]
BDLES OP IKTEKPBETATION.
837
§ 441. But a question of a still more delicate nature may arise ;
and tliat is, how fur in tlic oxcrcis^ of a concurrent power the
actual lejrislation of Congifss siipcrsodva tlio State tc^istation,
or aus|)cnils its opcmtioii over tlic Bubjeet<niatt«r. Arc the State
laws iuoi>ernt)ve only to the extent of the actual conflict, or does
Die IcfrislalioQ of Congress suspend the le^slatiro power of thfl
State over the aubject-mattfr f To such an inquiry, probahly no
universal answer could Iw given. It may depend upon the na-
ture of the power, the effect of the actual csorcise, and the ex-
tent of tJie 8iil I j«?t- matter.
§ 442. This may perhaps be beet illustrated by patting a case
which haa been roanoned out by a rery learned judge, in his own
words. ' " Congreas has power," saya he, "to provide for organiz-
ing, arming, and disciplining the militia, and it is presumable
that the framora of the Constitntion contemplated a full exercise
of all thcae powers. Nevertheless, if Congress had declined to
exercise them, it was competent to the State governments to pro-
vide for organizinjz, arming, and disciplining their reapectiTe
militia In such manner as they might think proper. But Ccm-
grcsa haa provided for thcso suhjecta in the way which that body
must have supposed th« best calculated to promote the general
welfare and to provide (or the national dcfenca After this, can
the State goremmenta enter upon the same ground, provide for
the same objects aa they may think proper, and punish in their
own way violations of the laws they have so enacted ? The
aflirmati\-e of this question is asserted by counsel, Ac, who con-
tend (hat, unless such State laws are in direct contradiction to
thoflc of the United States, they are not repugnant to the Consti-
tntion of the Unit<^^ States. From this doctrine T mu.tt, for one,
be permitted to dissent. The two laws may not Ije in such abso-
lute opposition to each otiier as to ren<Ier the one incapable (riT
execution without violating the injunctions of the other, and yet
the will of the one legislature may be in direct collision with
that of the otlier. This will is to be discovered, aa well by
what the legislature haa not declared aa by what they have px-
pressed. Congress, for example, have declared that the puniab-
ment for disobedience of the act of Congress shall be a certain
fine. If that pn>vided by the State legislature for the same
o£fonc« be a similar fine with the addition of imprisonment or
> Ur. JimUm WmUi^d, Hoiutm r. Hoon^ S WhrnX. R. 1, SI, 23.
VOL. t.— 33
CONSTITUTION OP TOB UKITED STATES. [BOOK HI.
death, the latt«r law would not prCTent tb« tornuir from being
carried into execution, and may bo said, thorcforo, not to be re-
ptigiiant to it. But surely the will of Congrcsa is nwertheleM
thwarted and opposed. " ' He adds : " 1 consider it a novel and
oncoostitutioiuil doctrine, that in cases where the State goTera*
nicuts have a concurrent power of legislation with the national
government, they may le^alate upon any subject on which Con-
gress baa acted, provided the two laws are not in t«rms or in
their operation contradictory andrepugnant to each other."'
$ 443. Another illustration may be drawn from tlie opinion of
the court in another highly important case. One question was,
vbetfaer the power of Congress to establish unifonu laws on the
■object of bankruptcies was exclosive, or concurrent with the
States. *'lt docs not appear," it was then said, "to be a violent
construction of the Constitution, and is certainly a convenient
one, to consider the power of the >jtates as existing over such
cases as the laws of the Union may tut reach. lie thia as it
may, the power of Congress may be exercised or declined as the
wisdom of that body shall decide. If in the opinion of Congress
uniform laws concerning bankruptcies ought not to bo estab-
lished, it does not follow that partial taws may not exist, or that
State legislntioQ on the subject must ci-ase. It is not the mere
existence of Ilic power, but itit exercise, which is incompatible
with the exercise of the same power by the States. It is not
the right to eatabliah thc«c uniform laws, but their actoal estab-
lishmcat, which is inconsistent with the partial acts of the
States. If Uio right of the Statm to pasa a bankrupt law is not
taken away by the n>ere grant of that power to Cougrcsa, U can-
not be extinguished. It can only be suspended by the eaaetmeot
of a general bankrupt law. The repeal of that law cannot, it is
true, confer the power on the States, but it removes a disalrtllty
to its cxerciso which was created by the act of CoogreBs."*
1 ITbnt. K. P.SS.
« B Vkal. R. p. St. 8*» abe OaUn r. PrtaM; S Vm^. C C B. 311. tit. ftc.
• Staifb >. CnwnlukUU. 4 WbMt. R. IS!, IVS, IM. Sot da Gibbtws >.
' Ofte, t Vhtu. a 1, 1»T. sir. S5, SM i Iliioa k Jttmi, t WkML R. »^ «,
SIMM. lUtofiniMi. tlMth*p«<nrlapMhBki^kinbMt «nJMlnt ^
talMd M d «BN u otifMlM vpfalM : ud lb «pteisa ii kBom ts W*« bM Hloptai
'•yrt li^ at cUwt «f th* Jajfftrf tfc»lliyiwL Camn. -*-- tumi m lUA
Ui. iMiiM WMhiagtoa'* opWsa > ftmdti. >m U Itaad at luft is tb ^ il
CH. T.]
BULGB OP IXTBBraLTA-nON.
S89.
It i* not our intention to CMument on thcac casea, but to offer
them «8 cxauipli>)i of reaaoning in &ivor un<l aguiiut the exclnaive
l)on-cr where a iKMitivc rvpugnancy cannot be predicated.
§ 444. It han been tiomctiinra ar)med th&t whi.'n s power is
granted to CoiigrcMS to legislate m spc-cific oajm-s for piirpmcfl
growing otit of the Union, the aaliirul conclusion is that the
power is rlesig^te*! to h« excliwire; llukt the power is to bo ex-
ercised for Die gond of the whole by the will of the whole, and
comtintently with the interests of the whole; and that these ob-
ject* can nowhere lie so ele«rlj- 8«en or so thorotiglily wi-iphcd
aa in Ctmgn^sH, where the whole nation is represented. But tlio
argument proves too much, and, pursued to its full extent, it
would establiiih that all the powers granted to OonBTots are ex-
clusive, unless where concurrent authority is expressly n^serred
to tJic States.' For instance, upon this reasoning the ]wwer of
taxation in OongrL-ss would annul the whole power of taxation of
the States, and thus oi>(;rate a virtual di»)u>lution of their sorer-
cignty. Such a protonaion haa been cunstantly diselaimed.
§ 445. On the other hatul, it has been maintained with great
pertinacity that the i^tatcs poaacss concurrent authority with
Congress in all cases where the power is not expressly declared
to bo exclusive, or cxpreasly prohibited to the States; and if, in
iite exercise of a eoucurrent power, a conflict arisrs, there is no
reaaon why each should not be deemed c<)ually rightful^ Bat it
is plain that this reasoning goes to the direct overthrow of the
princi|iIo of supremacy, and, if admitted, it would enable the
suhnniinnte sovereignty to annul the powers of the su|>(.Tior.
There is a plain repugnance in conferring on one government a
power to control the constitutional meaBuren of imolbL-r, which
other, with respect to these very mea»u^?t^ is declared to be su-
preme over that which exerts the control.* For instAnce, tlio
States have acknowledgedly a concurrent power of taxation. But
it is wholly inadmissible to allow that jwwor to be exerted orer
any instrument employed by Ute general government to vsccuto
OoIiIm *■ PriDcv, S Wuli. C C. R. 313, $33; Ad. Sea alao Ogdm •-. StDadoq, 13
VTbMl. R. SIS, 261. 2U, «nd Gibbon* v. Ogim, 9 Wlital. B. 1, 20»^ B34, 238.
< ilouaMti *. Moon. B Vhtit. R- 1, 49, SB. M.
* Sn Oibbonii *. Otd*m 9 WbMt. a 1, 1»1, no ; UtOnlkek «l Harrland, 4
Vhmt. R. SI6. GZ7.
• UcCutlovb V, itttjhad, i WlMst. E Sl«, ill.
340
CONSTITtmOK OF THE tTKirKD STATES. [BOOK m.
its powcru, (or such a power to tni iiiTolTce a power to dcstroj,
aod this pow<>r to destroj' may defeat and render uselem tbe
power to croftte.' Thus a 8t»te may tax the nmil, the mint,
patent rights, cuatom-liousc papers, or judicial process of the
oourtd of tlio United Htutiti.* And yet there is no clnu»e in
the Constitution which prohibits the States frotn exercising tbe
powi^r, nor any exclusive grant to the United Htates. The ap-
parent ntpugnauey crcat<.'«, by implication, the prohibition. So
CoDgress, by the Constitution,' poeseM power to provide for gOT-
emintr siich part of the militia as may be empliivfd in the service
of tlie Uiiilvd Stat*"*. Yet it is not said that snch power of gar-
cmmeat is exclusive. But it results from the nature of the
power. No pentnn would oontond that a State militia, while in
the actual service and employment of the ITniton States, might
yet be at the siune time governed and control led.Jfr the laws of
the State. The very nature of military operations would in endi
case require unity of command and direction. And the argu-
ment from inconrenience would be abeolntely irresiatihie to ea-
tablish an implied prohibition.* On the other hand. Congress
have power to provide for organizing, arminf^ and disviptining
the militia; bnt if Congress should make no such proriHion,
there scema no reason why the States may not organixe, arm,
and discipline tlictr own miliUa. No ncccssarr incompatibility
wonld exist in tlic nature of tbe power, though, when cseroised
by Coninvss, the authority of the 8tat«« most neeocnrlly yield.
And here the anrumcnt frcnn inoooTenieaee vonld be retr pen>
saasire the other way. For the power to organize, arm, and dis-
cipline tlie militia, in the absence of ooE^reasional Icgtalation,
would seem indiiipenflable for the dttfenoe and security of tbe
States.* Again, Congiesa bare power to call forth the militia to
execute tbe laws of tbe Union, to suppress insarrcetiona, and
rcfiel inTaaiooa. But there does not seem any ineompatibiHtT in
the Stales calliog oak tb^ own militia as aoxiliailea for tbe
'BUM purpose.*
§ 44& In oonatderini^ then, this snbject, it would be imprac*
tieable to lay down any nniveml rale as to what powers are, hf
impUcatioB, cxdnsiTe in the general goTenuneat, or oattcarrent
' 14. Ut
* Tt II- II " ■ "-^— - • "
•U.K
CH. T.]
RULES OP INTESPBETATIOH.
841
in Uio States; and in relation to the UUer, what rcetrictiona
eithvr on tbc puwur itouU, or un the actual uxorcitx; of tho power,
ome by iiuplioatioa. lu some cwca, as w« have aevn, there maj
exist a coucurixtut power, and yet reutriotionH npuu it must exist
lU regard to uhjuctii. Id othur cuimm tJio actual operations of the
power only am suspended or controlled when there arises a con-
flict with the actual upcmtiutis uf the Cnion. Every ((ut-stiou of
this sort must \k dt-cided hy itself upon its own circiunstances
and roasona. Because the power to re)^lat« commerce, from its
nature and objec-ts, is exclusive, it does not follow that the ponvr
to pass bankrupt laws also is exclusive.'
§ 447. Wc may, however, lay down some few rules dcduciblo
from what has bvuu already said, in rcspv-et to cases of implied
probihitiuns ujiun the existence or oxurcisc of powers by the
States, as f^idcs to aid our iuqiiiriea. 1. Wherever the power
given to the general govemincnt nKjuirca that, to be cfTicacious
and adequate to its end, it should be exclusive, there arises a
just implication for deeming it exclusive. Whether exercised or
not In such a cuso makes no difference. 2. Wherever the power
in its own nature is not incompatible with a concurrent power in
the States, cither in its nature or exercise, there the power be-
longs to the States. &, Bat in such a case the concurrency of
the power may admit of restrictions or qualiGeations in its na-
ture or excrciiM.-. In its nature, wlteu it is capable frum its gen*
eral charactur of being applied to objects or purposes which would
control, defeat, or divlroy the powers of the general governrnt^nt
In its exercise, when there arises a conflict in the actual laws
and regulations made in pursuance of the power by the general
and State governments. In the former case there ia a qualifica-
tion ingrafted upon the generality of the [mwer, excluding its ap-
plication to such otijecta and porposca. In the latter there is
(at leaat generally) a qualification not upon the power itaolf, but
only iifmu its exercise, to the extent of the actual confliirt in the
operations of each. 4. In cases of implied iimitations or pro-
hibitioDs of power, it is not sufficient to show a possible or po-
tential inconvenience. There must be a plain incompatibility, a
direct repugnancy, or an extreme practical inconvenience loading
irresistibly to the same eooclusioo. 5. If such incompatibility,
t Slorgu r. Cro-niiiiUdd, 4 ViMtt. 13S, IM^ »'. ICB ; Qibboda r. Ogin, »
iFbML R. 1. i»a, ift7, aos.
342
COXSTITUnON OP THE DXITKD STATES. [BOOK ID.
repugn&ncy, or extreme inccmvenieiKM would rcsnlt, it \$ no
answer, that m the actual excrciito ut tlic powvr ouch party may,
if it chooBVS, avoid a poititivc interference with tlic other. The
objoction \ic* to the power itself, and not to the exercise of it
If it cxiet, it may bo applied to the extent of controlling, defeat-
ing or destroying the other. It can never 1>e pr(!8»n»>d that the
fromers of the Constitution, declared to be aupremo, could intend
to put it» power* at hazai-d upon the good wialiea or good inten-
tions or discretion of the States in the excrcitie of their acknowl-
edged powers. 6. Where no such repugnancy, incompatibility,
or extreme inconvenience would result, th«n the power in the
States is restrained, not in its nature, but in its operations, and
then only to the extent of the actual interference. In fact, it ia
obTious that the same means may often be applied to carry into
operation different powers. And a State may uae the same
means to effectuate an acknowledged power in itAplf which
Congress may apply for another purpose in the acknimlcdgod
exercise of a very different power. Congress may make that a
regulation of commerce which a State may employ as a guard
for its internal policy, or to preserve tJie public health or peace,
or to promote its ovm peculiar interests.' lliese rules seem
clearly dcduciblu from the nature of the instrument, and they are
confirmed by the positive injunctions of the tenth amendment of
the ConstttutiiHi.
§ 448. XIIL Another rule of interpretation deserves consid-
eration in regard to the Constitution. There are certain maxims
which have found their way not only into judicial diseussions,
but into the business of common life, as founded in cummon-
sense and common convenience. Thus it is often said that in an
instrument a specilication of particulars is au exclusion of gen-
erals, or the expression of one tliinj; is the exclusion of another.
Lord Bacon's remark, ** that as excejition strengthens the foroe o£
a law in cases not excepted, to cntuneration weakens it in cases
not enomerated," baa been perpetually referred to as a fine illus-
tration. These maxims, rightly understood and rightly applied,
nndonbtcdly furnish safe guides to assist na in the task of expo-
sition. But they are snsceptible of being applied, and indeed
sro often ingeniously applied, to the subreraioo of the text and
the objects of the instrument. Tlius it has been suggested that
1 Sae GibtaH *. O^Im, S Wk^ K. M; SIO:
en. v.]
BDLSa or IMTEaPSETATIOir.
M8
an affirmative provision in a particular case escladea the exist-
ence of the like proviaiou in every other caae, and a n«gaHTe pro-
rlsion iu A particular caau udmits the existence of the same
thing in every other caae.' Both of thetM* dt'dnctiooa are, or
rather niay be, unfounded in solid reaauninf;.' Thus it was ob-
jected to the Constitution that, hariDg provided for the trial by
jury in criminnl cages, there was an implied excluaion of it in
civil cases. As if there was not an essential difference between
silence and abolition, between a positive adoption of it in one
clans of caHCB and a discretionary right (it being clearly within
the ivach of the judicial poweni confided to the Union) to adopt
or reject it in all or any other cases.' One might with jiiat as
^nrh propriety hold that becaiiHC Congress has power " to declare
war," but no power is expreasty given to make peace, the latter
is excluded; or that, becauae it is declared tliat "no bill of at*
tainder or ex pMtfarto kw shall be passed " by Congress, there-
fore Congress posseHS in all other cases the right to pass any
laws. The truth is, that, in order to ascertain bow far an aflirm-
ativo or negative provision excludes or implies others, we must
look to the nature of the provision, the Buhjcct-raatter, the ob-
jects, and the scope of the instrument. These, and these only,
can properly determine the rule of constnietion. There can bo
no doubt that an affirmative grant of powers in many cases will
imply an exclusion of all others. As, for instance, the Cod-
stitution declares that the powers of Congress shall extend to
certain enumerated cases. This specitication of particulars
evidently excludes all pretensions to a general Icgislatire au-
thority. Why ? Because an affirmative grant of special powers
would be absurd, as well as uaclcaa, if a general authority were
intended.* In rolatiun, then, to such a subject as a constitution,
the natural and obviouii sense of its provisions, apart from any
technical or artificial rules, is the tnie criterion of coustrtiction.'
§449. XIV. AnotJier nile of interpretation of Ihr Constitu-
tion suggested hy the foregoing ia, that the natural import of a
single clause is not to be narrowed so as to exclude implied
powers resulting from its character, simply because there u an-
> »M th» TeiefiUt, tfn*. S3, U.
* Colinia t. Vlt)ctiit^ a Wbrat. R. 396 to iOl.
■ tin P*<d(^i»t, No. 6a.
* Tlifl F«l«niUtl. N'o. M. See VatUt, B. S, <h. 17, 1 Ml.
* The F<d«nlwt, No. 8).
S44
CONSTITUTION OF THE UNITED ilTl-m. [»00C ttU
other oluuse which entunerateii certain powcni which might otbcr-
vieo be deemed implied powers within ita acope; for in such
caaes we are out, as a matter of course, to assume that tlto
affirmative spvoificatiuu excludes all other implicatiuns. This
rule has been put in a clear and just li|^t hy one of our most
distinguishud stat^smuu, imd liis illuntrotiua will t>u more aatis*
factory, perhaps, thuu auy other which can be offered, "llie
Constitution," says he, "vests in Congress expressly the power
to lay and collect taxes, dutiea, imposts, and excises, and the
power (0 rogulat« trade. Tliat the former power, if not partic-
ularly expressed, would have been included in the latter aa one
of the objects of a general power to n^^late trade, is not neces-
sarily impugned by its being so expressed. Examples of this
sort cannot sometimes be easily avoided, and are to he seen
elsewhere in the Constitution. Thus the power ' to define and
p«iuish offences against the law of nations * includes the power,
afterwards partir^ularly expressed, ^to make rules concerning
captures,' Ac, from offending neutrals. 80, also, a power 'to
coin money * would doubtless include that of ' reflating its
value,' bad not the latter power been expressly inserted. The
term taxe*, if standing alone, would certainly hare included
'duties, imposts, and excises.' In another clause it is said, 'no
tax or duty sliall be laid on exports,' ^tc Here the two terms
are used as synonymous. And in another clause, where it is
said 'no State shall lay any imposts or duties,* &c, the terms
impo^ and duties arv syuuuymuus. Pleoausms. tautologies, and
the promiscuuds use of terms and phr»so«, differing in their
shades of meaning (always to be expounded with reference to
the ooat«xt, and under the control of tlie general character and
manifest scope of the instrumont in which they are found), are
to lie aseriticd, sometimes to the purpose of greater cautioa, some-
times to the imperfections of langua^ and sometimes to the
imperfection of man himself. In this view of the subject it was
quite natural, however ocrtaioly the power to ri.-},n]lnte trade
might include a power to impose duties on it, not to omit it, in
a clause enimierating the sereral modes of revenue authorized by
the Constitutiiin. In few cases could the [rule] «x m^ori
cautda occur with more claim to respect"'
§ 450. We may close this view of some of the more important
> Ur. lUdken'* Letter to lb. CabcU. IStk StptanUr, !»».
CH. V.J
BOLES OP IKTERPRCTATIOK.
845
rule* to be ciuployod in the ioterpretation of the Constitution bjr
adverting to a few belonging to mere verbal criticitm, which are
indeed but eoroUaries from what ha« been said, and have been
already alluded to, but which, at the fianie tinto, it majr bo of
Bome use agnin dJHtinctlf to enunciate.
§ 451. XV, In the first placi:, then, every word employed in
the Cunatitution in to be ctpoundcd in ita plain, obvious, and
common senso, unless the context furniahea some ground to
contrul, qualify, or enlarge it Constitutions are not designed
for metuphysicul or logical subtleties, for niceties of expression,
for critical propriety, (or elaborate shades of meaning or for tlio
exercise of philosophical ucutcness or judicial research. They
arc ioMtrunicnts of a practical nature, founded ou the common
bnaiooas of human lifu, adapted to common wantv, dutiigncd for
ooinmon use, and fitted for common imdoretandlngB. The pvoplo
make them, the people adopt them, the people mu«t bo BuppoHcd
to l«ad them, with the help of common-sense, and cannot be
presumed to admit in them any nwoodite meaning or any extra-
ordinary gloss.
§ 462. XVI. But, in the next place, words from the necessary
imperfection of all human language acquire different shades o(
meaning, cjich of which is equally appropriate aud equally legit-
imatv ; each of which rwcdcs in u wider or narrower degree from
the others, according to circumstances; and each of which r«*
cei\'es from its gcucnil use some indelinitcness and obscurity as
to its exact boundary and extent' We are, indeed, often driven
to multiply oommentaries from tho vagueness <d words in them-
aelves, and p<^'rhap8 still more often from the different manner
in which different minds are accustomed to employ them. They
expand or contract, not only from the oonrcntional modifications
introduced by tho changes of society, but also from the more
loose or more exact uses to which men of different talents, ac-
quirements, and tastes from choice or necessity apply them. No
person can fail to remark the gradual deflections in tlie meaning
of words from one age to another; and so constantly is this pro-
cess going on tiiat the daily language of life in one generation
sometimes requires the aid of a glosaary in anotlier. It has
been justly remarked,' that no lamnia^' is so copious as to sup-
ply words and pliroses (or every complex idea, or so correct aa
> 8m VatUl. B. 3. di, 17, H SCI, 3M. * TIm FadMaliM, Ko. S7.
846
coNsrmmoK op the united states. [booeiil
not to include 0)0117 eqnirocall;r denoting different ideas. Hence
it must liappvn tbut however accurately olijecta may he discHmi-
natud in thvniMlvcs, and however accurately the discrimJnatiuo
may be coiiBidon!d, the definition of thom may be rendered ioac-
curate by th« inaccuracy uf the terms in which it is delivered.
We must resort then to the contest, and «h»po the particular
meaning so as to make it fit that uf the connecting words and
agree with tlie subjoct-niattcr.
$453. XVII. lu the next place, where technical words are
luect, the technical meaning is to be applied to them, unless it ^
is repollfd by the context' Bat the Ram« word oft«n pouaoMW '
a technical and a common sense. In such a case the latter is to
be preferred, unlms some attendant circumstance |>oiuta clearly
to the former. No one would doubt, when the Constitution has
declared that "the privilege of the writ of habea» corpnt shall
not be suspended unless" under peculiar circunuitancoa, that it
referred, not to every sort of writ which has atijuirt'd that name;,
bat to that which has been emphatically so called, cm account
of its remedial power to free a party from arbitrary impriaoo*
mcnt' So, again, when it declares that in suite at wmmon Utm^
Ac, the right of trial by jury shsll be preserved, though the
phrase "common law" admits of different meaningR, no one can
doubt that it is used in a technical sense. When, again, it de-
clares that Congn^s shall have power to provide a navy, we read-
ily comprehend that authority is given to construct, prepare, or
in any other manner to obtain a naty. But when Congress is
farther authorized to provide fur calling forth the militia, wo
perceive at tmce that the word "provide" Is nsod fn a some-
what different sense.
§ 4^. XVIII. And tliis leads ns to remark, in the next
place, that it is by no means a correct rule of interpretation to
conatTue the same word in the same sense wherever it occurs in
the same instruni^'nt It does not follow, either logically or
grammatically, that because a word is found in one connection
in the Constitution with a definite scnsc^ therefore the same,
sense is (o be adoptvd in every other connection in which it 00- '
core.' Tliis would bo to suppose that the framers weigbod only
1 Sn Tattal, & 1, «k. 17, H K^ 277.
* Ei iwt> Bollmu a flwutvoot, | Oaacb. Ji.
• TMtet, B. 8, ch. 17. S SBl.
CH. v.]
BOLES or INTEBPRETATIOK.
847
tlic force of einglo words, as philolo^sts or critics, and cot whole
clAti«ett aud objects, as atHtc&moa and practical n-afiuiicre. And
yet nothiii)F has hwttt more common tlian to mibjevt the Constitu-
tion to thi8 nnrrow nnd miHchicvuuH criticisin. Men of ingCD-
ioug and Jriiilitl« miiitU, who Aock fur Kj-iumctry aihI harmony in
language, having found iu tlie Constitution a word used in some
senae whicli falU in with their favorite theory of inter|ireting it>
hare made Uiat the standard by which to measure its use in every
other part of the inetruineat They have thus stretched it, as it
were, on the bed of I*rocni8te», lopping off its meaning when
it seemed too large for their puri>osefi, and extending it when it
seemed too abort. They have thus distorted it to the rnodt unnat-
ural shapes, and crippled where they liave soii^tonly to adjust
its proportions according to their own opinions. It was very
justly observed by Mr. Chief Justice Marshall, in The Cherokee
Nation v. The State of Georgia,' that "it has been said that the
same words have not neceasarity tlie same meaning attached to
them when found in different parts of the same instrument
Their meaning is controlled by the context. This is imdoubtedly
true. In common language the same word has various meanings,
and the peculiar sense in which it is used in any sentence is to
be determined by the context" A very easy example (A this
sort will be found in the use of the word "establish," which is
found in various places in the Constitution. Thus, in the pre-
amble, one object of the Constitution is avowed to be " to estab-
lish justice," which secnis here to mean to settle firmly, to fix
iraaltorably, or rather, pt.Tha|)s, as justice, abstractly considered,
must be considered as forever fixed and unalterable, to dispeoM
or adrainistur justice. Agoin, the Constitution declares that
Congress shall have power "to establish an uniform niln of nat-
uralization and uniform laws on the subject of bankruptcies,"
where it is manifestly n.sed as equivalent to make, or form, and
not to fix or settle unalterably and forever. Again, " Congress
shall have power to establish post-ofSccs and potit-roada," where
the appropriate sense would seem to be to create, to found, and
to regulate, not so much with a view to permanence of form as
to convenience of action. Again, it is declared that "Congresa
shall make no law respecting an establishment of religion,"
which seems to prohibit any laws which shall recognize, found,
> S rmti'f Rtpu 1, IS;
348
CnKSTlTtlTIOH or THE OKITGD STATtS. [bOOK m.
confirm, or patroiiixe aay particular religion, or form of religion,
wh4!tlicr pcrmojient or temporary, whether ttlrcady existing or to
ari)u> in future. In tbis cUu»e, establiahment seoms equivalent
in meaning to dettlement, recognition, or support And again,
in the preamble, it ts luiid, "We the people, &c, do ordain
and establish this Constitution," £c, where the moat appropri-
ate seneo seonu to be to crcatv, to ratify, and to coulirm. So the
word " State " will .bu found luted in tiie Constitution in all tbo
ToriouB senses to which we have beforu alluded. It soraetimea
mcaiui the iH.-pjinitc iioctioiut of territory occupied by Uic political i
societies within oach; sometimes the iioHicular governments «•- <
tablishcd by these societies; sometimes these societies as organ*
ised into Uieiio particular governments; and, lastly, sometimes
Uie people composing these political societies in their highest
SOveroigu capacity.^
§ ia5. XIX. But the most important rule in cases of this na-
ture il^ Uiat a constitution of guvorumeul does not, and cunnot,
from its nature, depend in any great degree upon mere verbal
criticism, or upon the import of single words. Such criticism
may not be wholly without me; it may sometimes illustrate or
unfold the apprupriato sense; but unless it stands well with the
conte.vt and subject-matter, it must yield to the latter. While,
then, wc may well resort to the meaning of single words to
assist our inquiries, we should Dorcr forgot that it is an in-
stnuni-ut of government we arc to oonstruv; and, as has been
alreiidy stated, that must be tho truest exposition which beat bar-
moniicv with its design, its objects, and its general 8tructure.*(a)
§ 456. The remark of ilr. Burke may, with a very sli^^i
change of phrase, be addressed as an admonition to all thoao
who are called upon to fnuno or to interpret a coDstitntioa.
OovenuiH-ut is a practical thing made for the happinew of man-
kind, and not to furnish out a spectacle of nniformitr to gratify
the schemes of visionary politicians. The busineaa of those who
are called to administer it is to rule, and not to wrant;le. It
would bo a poor compensation that one had triumphed in a dis*
> Mr. HuUaw^ Vbttal* RapMt, Jww; 7, ISOO^ p. f ; wt*, { SOS, p. IM.
* 8m VtaiA. B. S. ch. ir, K SSS, IML
(■) SMlI(MhBw».rHtcf.9rkfc.31t.fcrlGrdll«Mattki«ilUiMldwtbrCbM
toMof Fwfcw.
CH. T.]
BULKS or INTEBFBKrATIOK.
S49
pate whilst we had lost an empire ; ' that we had frittered down
a power, and at the same time had destroyed the Republic (a)
1 BnAa'a Lsttor to the Shanfik of Bristol in 1777.
(a) We must not tliBn confina tba pow-
an of the federal State within the liitdta
of B nanow and partiaan Donatrnctioo.
" We «e to anppoM that thoae who are
delegated to the gnat bniiDeea of diatrib-
iiting the powen which emanated tnaa the
■aTenignt; of the people, and to the eetab-
liahmant of rnlea for the perpetoal Becmity
of the rights of penon and propertjr, had
the wisdom to adapt their language to fn-
tare u well u eiiatiiig emergendea ; so
that word* oonpetent to the then eziatiiig
atals of the comnmnlt]' and at the aame
time eapaUe of being expanded to embrace
more axtenaive nUtiona, ahonld not be re-
■baioad to their more obriona and imme-
diate eenas, if, conslateatl; with the
general o^tject of the anthora and the tnie
princlplea of the compact, tbef can be ex-
tended to other relattona and circnmatanoai
which an improred atata of tocie^ may
prodnce." Henabaw ■■ Fetter, B Pick.
317, per TtAa, Ch. J.
CONSTITUTION OF TUU UNITED STATES. [BOOK IIX.
CHAPTER VL
THE PBIIAHBUE.
§ 457. HATmo iligpoiicd of these preliminarT tn^mries, we are
now nmv«4) at Uiat pait of our laliora which involves a oom-
mentary upon the actual provisions of tJic Cunatitution of tlie
Unit«d Statvii. It ia proposed to talce up the succeBaive cUus«
in the order in which thoy stand in th« instrument itftelf, so that
the exposition may naturally flow from thu terms of the texL
§ 468. Wo bo^n then with the preamble of tlto Constitutioo.
It is in the fo]lowin>f words: —
" We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquilli^,
provide for the common defence, promote the general welfare,
and secure the blessing of liberty to oursolrea and our {MMtcrity,
do ordain and cstabliish this Constitution fur tlie United States
of America. "
§ 459. Tile importnnco of examining the preamble, for the
purpow of cspoundinif the lan^age of a ststnt*^, has been long
felt, and univer»a)iy conceded in all juridical discussions. It ia
■n admitted maxim in the ordinary course of the administratitHi
of justice, that the preamble of a statute is a key to open the
mind of the makers, as to the miscJiiefa which are to be remedied
and the obje«t» which are to be accomplished by the pmvisions
of the statute. We find It laid down in some of our eiirliest au-
thorities in the common lav, and civilians arc accustomed to
a similar ex|irc*sion, cfttanle legu prcrtnio, etttat ri ipta /«;*
Probably it hai4 a foundation in the expression of every oode of
written law, from the nnirersal principle of interpretation, that
the will and intention of the legislature are to be r^ganled and
followed. It ia properly resorted to where douhts or ambif^itiea
arise upon the words of the enacting part; for if they are clear
and unambif^uoua, there secraa little room for interpretation, ex-
cept in cases K-adinyr to an obvious absurdity, or to a direct over-
throw of the intention expressed in the preamble.
> Bm. AlnJtf. SutDtcl.j S Floirdm, K. MS I 1 laU. ».
CB. TI.J
THE PBEAMBLE.
851
§ 460. There does not Mom ao}* reason vrhir, in a fandamontal
law or constitution of jroviTnmciit, an equal attention sbuuld not
be given to the int«.'ntion of tht- framor», us stated in tbu pniam-
ble. And acvordinj^ly w« find that it bna bciin coii^tantlj n-
ferred to by otaU'smcn and jtirista to aid tlicm iu tlic cxjMeition
of it« provisions. '
§ 461. Tbo lan^iajre of Iho preamble of tbc Constitution was
probably in a ^ood uii^usurc drawn from that of Uie third article
uf the coofedenttion, which declared tliat " The said Htntes lierebj
Bevcrally enter into a hrm Uatfu* of friendship with each other,
for their common defence, the security of tlieir liberties, and
their mutual and general welfara" And ve accordingly find
thftt the first res'diition pm|>osRd in the C4>nYcntion which fram<^d
the GonstitHtion was, that tlie Articles of the Confederation ought
to be 80 corrected and enlarged as to accomplish the oltjects pro-
posed by their institution, namely, common defence^ aocurity of
liberty, and general welfare.'
% 462. And here we muat guard ouraelrefl against an error
which is tno often allowed to creep into the discuiwions upon tliis
suljjcct The preamble never con be resorted to to enlarge the
powers confided to the general government or any of its depart-
ments. It cannot confer any power per *«/ it can never amounty
by implication, to an enlargement of any power expressly given.
It can never l>e the legitimate source of any implied power,
when otherwise witlidrawn from the Constitution. Its true otiico
is to eitimnnd the nature and extent and application of the pow-
ers actually conferred by the Constitution, and not Bubetantivcly
to create them. For example, the preamble declorea one obji-^t
to be, "to pro^'ide for the common defence." No one can doubt
that this does not enlarge tlio powora of Congress to pass any
measures which they may deem useful for tlic common defence.*
But suppose the terms of a given power admit of two coustnic-
tiODS, the one more re-strictire, tlie other more liberal, and each
of them is consistent with the words, but is, and ought to be,
governed by the intent of the power; if one would promot*? and
the other defeat the common defence, ouj^it not tbo former, upon
I Am ChitlMlM «. OMTgIa, Chkf JMtko Jky*! eiriy on, S DdL 410.
* Jonnal «f CMiT^ntimi, fH ; Id. BS.
* TM, atniigtijrmcnigti, tliiioIywtianwHiiTsedKtTltnaaoadrilklMttkaidop-
liBn of tk CoMtimlkiL 1 EUmI'i DebftUa, 2M, WO.
852
coNsrmmofr op the dkttbd btatbs. [book in.
the BoniKleBt principles of ititcrpretntion, to be adopted? Arc
Te at liberty, upon *nj principles of reason or eommon-»cn8«, to
adopt a restrictive moaning which will defeat 8n avowed object'j
of the ConBtitution, when another etiually natural and more ap-
propriate to the object ia before us? Would not thin be to
deHtrof an inatrument by a mcaaare of its wordn, which tiiat
instrument itself repudiates?
§ 463>. We haro already had occasion, in considering the na-
ture of the Constitution, to dwell upon the tcnna in which tho"
preamble ia conccired, and the proper conclusion dcduciblc from
it It ia an act of the people, and not of the States in their po-
litical capacities.' It is an ordinance or catabliahmtMit of gov-
ernment, and not a compact, though originatinf; in coiiBcnt; and
it bindu as a fundamental law prumulgutiHl by the sovL-reijni au-
thority and not as a compact or trcoty entered into and in fieri,
bctwc>en each and all the citizens of the United Stat^a as dis*
tincl parties. The language ia: "We, the pe»pi« of the United
States" (not, We, the Statet), "do ordain and «*faWi»A " (not,
io eoHtmet ViUd enter into a (r«i(y with each othi>r> "this Con-
Ititvtion for the United States of America" (not thia treaty'
between the several States). Aod it is, therefore, an unwai^
rantable assumiition, not to call it a most extrav^ant atreteh of
interpretation, wholly at variance with the language, to substi-
tnte other words and other senaee for the worda and eenaieai
incorporated in this solemn manner into the sulxnlance nf the
instrument itself. We have the strongest assuraitcett that this
preamble was not adopted as a mere formulary, but as a solemn
promulgation of a fundamental fact, vital to the character and
operations of the government The obvious obj(>ct was to sub-
stitute a government of the people for a confederacy of States ; a
constitution for a compact^ (<i) The difliculties arisinpr from this
Boorcc were not alight; for a notion commonly enough, however
incorrectly, prevailed, that, as it was ratified by the States only,
< Sm 2 Uord's D«l»t>^ i;S9, ppl its, ISO. ISL
I By • oonutibitfaa ia to In mdmUo^ my Mr. JoirtiM WiUm, ft miutute l*w,^
aiada and ntUed bf Umm In w1m« th* ■M«nf0i fornn of tba mmcb iMiilia. wUeh'
pnacriba Um nuuiacr in wMdi that •OTanlcn fymt willi thkt Uit gonmmant •booU
be UiUtslal a«d *dHl*iatn«i. 1 WUtM'a Lattaraa, tlT.
It DontrilKitticI nof a little to the infinnitiM of tli« Aitkka of tlta OenCedaatini, tknt ,
it na*w had a tattflcation hj Uw p*api«- Ti>» 7«deraliat, S3.
(a) 8e» Jamcaon, OanadHtlMal Cenraatko, } S9.
CH. t:.]
TBR PRKAMBLB.
868
tho StaUra respectively at their pleaaure might repeal it; and
Uiis, of it««lf, proved the ni'ecseit; of lajini; the foundatioiLi of
a natioiuil ^overiimeitt deeper than in thu mere Bunctioa of del-
ejnted iwuer. The convention detvrmiiii'i] that the fabric of
American empire ought to re«t uid shuuld rest on the solid
basis of itho congimt of the people. The streumiS of national
power ou^ht to (low and should tlow immediately from th« high-
est uri|;itial fountain of all Icj^itimatv authority.' And, occord-
inKljf the advocates of Uie ConMtilutiou so treated it in their
reasoning in favor of its adoption. "The Constitution," Raid
tho Federalist, "is to bo founded on the assent and ratification
of the people of America, giTen hy deputies cleetcd fur that pur-
pose; hut thiii aanent and rati6cation is to ho given by tho
people, not as individuals composing a whole nation, hut us
composing the distinct and independent States to which they
belong,"' And tho uniform doctrine of the highest judicial
anthority has accordingly been, that it was the act of the people,
and not of the States ; and that it Iwund the latter as subordinate
to the people, "Ijct us turn,"' said Mr. Chief Justice Jay, "to
the Constitution. Ttie people therein declare that their design
in establishing it comprehended six objects : 1. to form a more
perfect union; 2. to establish justice; 8. to insure domestic
tranquillity; 4. to provide for the common defence ; 5, to pro-
mote the general welfare; 6. to secm-e the bleHsings of liberty to
themselrcs and their posterity. It would," ho added, "bo pleas-
iDg and useful to consider and trace the relations which each of
these o)>jects bears to the others, and to show that, collectively,
they comprise OTorything refjuisit^ with the blessing of Divine
Providence, to render a people prosperous and happy."' In
Martin p. Hunter's Lessee,* tho Supreme Court say, as we havo
seen, "The Constitution of tho United States was ordained and
cstnblishM, not by the States in th<;ir sovereign cspacitlcs, but
emphatieally, as the preamble of the Con«ititiitiou deelarcs, by tlio
people of the United States ; " and language still more expressire
will be found used on other solemn occasions.'
1 TlwF«l«nlut, Ko.»i •M>lMyo.48i 1 Elliot's D«IMm, 75 1 inK, |>. 03-
■ The rtiknliit, Ho. SB ; Id. Xo. 84.
• ChUholm ■. Gtot^it, S D>1L tM, * 1 WhML B. SOS, 334.
* Sm McCvllocb V. HujUad. I Wh«aL R. >1<, t<H, 403 : Cabala w. Viixiiiu, «
WhmL H. 941, 413, 4Mi Mcilw 1 Kcnt't Omuil. LdM. 10, p. 18».
VOL. 1. —S3
354
CONSXITCnOS OP TOB DNITED STATER. [BOOK lit.
§ 464. But tliia point hna been so much dvplt upon b the
dUcuiuion of other to]>icit,i that It is wholly unneceMttiy to pur-
sue it further. It docft, however, deserve notice^ ihut this jthra-
scology was a mntlcr of much critical debate in «ome of tlio
conventions called to ratify the Constitutiou. Ou the one hand it
wu pressed, as n subject of jiint. nlnnn to the ■'^tnb'i*, that the peo-
ple were substituted for the States; that this would involve a de-
straction of the States in one consolidated national government;
and would terminate in the subvenjion of the public liberties.
On tbe other hand, it wnfl urged, aa the only safe course for the
preservation of tlie Union and tbe liberties of the people, that
the government Rhoiil{l emanate from the people, and not from
the States ; that it should not be, like the confederation, a more
treaty, operatin^r liy rt'ciuisitiona on the States; and that the peo-
ple, for u-ha«H! bcilelit it was framed, ought to have the sole and
e.\clnaiTO right to ratify, amend, and control ita provisiunx.*
§ 465. At this distan<M! of time, after all the passions and in-
tcrcats which then at^itated the country have passed away, it can-
not but be matter of surpriDu that it should have boon ur^^, as
a solid objection to a ^vernmeut iiiti.-ndod for the benefit of the
people and to operate dlreetly on them, that it was nKjuired to bo
ratified by them, and not by bodies politic created by them for other
purpoiH-s, and having no implied authority to act on the subject
§ 466. Tho OonstitutioQ having been in oporatioo moro than
forty \-cars, and Ix^ng gener«Ily approved. It may, at first sight,
seem unnecessary to enter upon any examination of the manner
and extent to which it is calculated to accomplish the objeoti
proposed in the preamble, or the importance of tho^e objects,
not merely to the whole, in a national view, but also to tbe indi-
vidual States. Attempts have, however, been made at different
times, in dilTerent parts of the Union, to atir up a ditaffection
to the theory, as well as the actual exercise of the powers of the
general govermnent ; to doubt ita advantages ; to exonerate the
> Jit, m\s-ti^
* TM ieUba in Uu Viij^nlk CoBTUitiati mv ittj pointad «a tbi* nlject. Hr.
Bwirj »s**I Uiae o^Mtioiw i^datt it la > nrj fottjblc iBAnittr (I KIUm*! VlrjcfBia
DibtMii, 4*. 61, 131) ; ud b« WM MpUid lo, >ii4 tho pMunUt TtnJiot*!! «tih fnal
abtmy hf Hr. Ruidolph, Hi. Pendbton, Ur. Lm, Hr. NIcholMi tnA Ht. CurWa. S
EUiot'i Vlifi&U P»Wlc«, d, ST, V7. 98. Th* nilajrct b ibo dwnianl in the Iforth
CaiiDlliM tVtaM rs ElUoft Dnb. IS*, llfi), and in Ui* UuvdnvCU OelatM. 1
EUiM't Deb. li, no. >M ftiM S PUk. liUt «;0 ; S Aant. UuMUn, &M, MC
CH. T1.]
THB FRKAMBLR.
355
unayoidabtfi inequalities of its operations; to ncctutom tLc minds
of the people to contemptato the conHequenoes of a division, u
frau(;)it n-itb no dan^vroua cvilti ; and thus to lead the way, if not
deHi(n«'dly, at leant iosuiuiibly, to a suparation, as involving no
ncivsHary sacrifiCA of important blessings or principlea, and, on
the whole, ttndcr some circumatuncci), a« not uudi-eirablo or
improbable
§ 467. It is easy to «co how many different and even opposite
niuti\-es may, in difTorcnt p«rt« of the Union, at different times,
give rise to and encourage sucit speculations. Politieal piuuions
and prejudices, the disappointments of pcreoiiul ambition, the
cxoitemonts and mortifications of party strife, the stm^les for
particular systems and measures, the interests, jealousies, and
rivalries of particular States, the unequal local pressure of a
particular system of policy, either temporary or permanent, the
honest xeal of mere theorists and enthusiasts in relation to ^r-
emmont, the real or imaginary dread of a natioual consolidatioa,
the deliiisive atid corrupt projects of mere dcmagi^ncs, — these;,
and many other influences of more or less ptiritjr and extent,
may, and we almost fear must, among a free people, open to ar-
gumcut and eager for discussion, and anxious for a more perfect
oi^nization of society, forever preserve the elements of doubt
and discord, and bring into inquiry among many minds the
quMlion of the vatao of the Union.
§ 468. louder th«*e circumfttanc<>a, it may not be wllhont some
osc to condense, in an abridged form, snnto of tbnsc reasons
which became, vith reflocting minds, the solid foundation OD
which the adoption of the Constitution was oripinally rested,
and which, being permanent in their nature, ouglit to secure its
perpetuity as the shoot-anchor of our political bopca. Let na
follow out, then, the suggestion of Mr. Chief Justice Jay, in the
passage already eit«.-<d.'
§ 4ti9. The Constitution, then, was adopted, firet " to form a
more perfect union." Why this was desirable has been in some
measure anticip«ted in considering the defects of the confedera-
tion. When the Constitution, howercr, was before the people for
rati(ic4ition, suggestions were frequently made by those who were
I Chiahobn *. GBotpa, S D>I1. B- 110. VTg thall frwiy nta the ulminble mMrmlnfl
ef lb* rrdnnlut on tkrinlf)MtariliD ITnioo, withnat in cir«]riattaM%«oti^g(li«ii«r-
tlCDUr citaUotu, u tbtj would <*c«mbcr Um taXU
8S6
COKBTITCTION OF THE 0X1713) STATffl. [BOOC HI.
opposed to it^ that the country vtm too extensive for a siogle
national frorcmmcDt, and oajiht to bo broken up into several dia-
tinct confederacies or sovercii^tics ; and some even went aof&r ob
to doubt whether it wore not, on the whole, bent that each State
should rctiiin a separate, indciMindcnt, and sovereign political
oxistoocc' TlioKc who contemplated Boreral confederacies spec-
ulated upon a disniembermeut into three ^reat confederacies, ooe
of tjic Northern, another of the Middle, and a third of the South-
cm i^tatea. Tho greater probability, ccrtainlj, (ben wa« of a
Koparalion into two confederacies ; the one composed of tJ>c North-
ern and Middle States, and the other of the Southern. Th^
renMning of the Federalist on this subject seems abaolutcly
irresistible.' 1'hc prt^crefls of the population hi tho Western
territory, since that period, has matennlly changed the basis
of all tliat reasoning. ITiere coold scarcely now exist upon any
diamemliernient (with a view to local interests, political associ*
ations, or public safety) less than tJiree confederacies, and most
probably four. And it is more than jiroljable that tho line of
diriaion wotild be traeed out by geographical boundaries which
would separate the staveholding from the non-elareholding State*.
Such a distinction in gorenunent is so fran^ht with causes of
irritution and alarm that no honest patriot ocMild contemplate it
without many painful and distressing fears.
§ 470. But the material consideration which should be kept
steadily in view is, tluit under such circumstances a national
Korenuncnt, clothed with powers at least equally extonsivB with
those given by the Constitution, would be indispensable for the
preservation of each separate confederacy. Xsy, it cannot be
doubted that much larger powers nod much heavier expenditures
would be Docessary. No nation could long maintain its public
liberties, suirooaded by powerful and vigihmt neighbors, ooIcbs
it poaseased a goremment clothed with powers of great eRSot«Bey,
prompt to act, and able to repel every ioraaion of its ri|chta. Ifor
would it afford the slightest security that all the coofederacias
were composed of a people descended from the same anceatora,
■peaking Uie sane huoguage, pioJwsiag the same relifrioo, at-
tached to the saate principle* of garenusent, and passessing simi-
lar manners, habits, and customs. If it be true, that tlicse eir-
1 na rW-nlitf, Nm. 1, & 9; It, 1«: t Wlkn'* Vofki, tU. »S; rU«jV Man)
nd palitiHl FUkMphr. & 4 ck. a. ■ TW ttamam. Sm. U. 14.
CH. Tl.]
TSR raBA3IBL&
8&T
cutnstancen would not bo sufficient to hold thflia in s bond of
peace and onion when foniiing one govenuuL'nt, acting for tho
interests uud as tho repre»entatjv«B of tho rights of tho whole,
huw could A better fate be expected when the intvreeta and the
rcpnjKciitutioD were eeparate, aiid ani)>ition, and lui-jil intcreHtg
utd fftelinge, and peculiaritieH of climate and [»roduct8, and in-
gtituliotiA, and imaginary or real aggresaions and grierances,
and the rivalries of commerce and the jealousies of domtntoD
shwild spread themselves over the distinct cmincils which would
regulate their concerns by indcpentlent legislation ? ■ The cxp«-
lience of the whole world is against any reliance for security aud
peace between ncifrfaboring nations under sncb circunuitanoet.
Tlie Abbe Mably has forcibly staled in a single passage tho
iriiole renttlt of human expcricneo on tliis subject " Nei^bor-
ifig Btatcs," says he, **o.k uaturully i-ncmics of each other, imless
their common weakuois forces them to league in a confedemtiTQ
republic, and their constitution prevents tho difforouoos that
neighborhoud occasions, extinguishing thutsucrrt jealousy which
disposes all states to aggrandize themselves aC the expense of
their ncigbbon. " This passage, as has been truly oljserred, at
the same time points out the evil and suggests the remedy.'
§ 47L Tho satno reasoning would apply with augmented force
to the case of a dismotiilKmneut when eiu-li Htatc should by itself
constitute a nation. ITic very iiie<junlities in the size, the rev-
enues, the population, tho products, tlic interests, and even in
the institutions and laws of each would oocasion a perpetual
petty warfare of legislation, of border agressions and violations,
and of political and pcnionat animositic:^, whicli, fii«t or last,
would terminate in the subjugation of the weaker to the arms ot
the stronger.^ In our ^l^tJle^ observations on this subject, it is
1 The FodcnlUl. Nos. 3, 5, e, T i S WitMia'i W<nki, 2Sfli Pktqr'* Voml aad PoliU-
ciri nUemtfbj, B. 4, tk. S.
* TW FwlimlM. Ha. &
Tint reinuki wIikI T«iriia pati Is tli« mooth of Calgtcniv in LU Lif* of AgriMl*.
tn hm applksble : " Kmlria Ull iliMnaloalbu* m iliMotilik chri, rilu hoMfuni in glo.
rim cMTFitw mi rtitmit ;(q<Mm ooninnhim «x JinniHiink ftBtib<u ul ■Kusdz nt
Mnoit. It* ulvBntt diaolrait ; am *i Cialloa et (tcnntUM ct (padat dUtu) BKUsiimnia
pkmaqiKs lioM doaUsidoul allmiB BBKuinein couunodont, diutiu* Uiutd hoUm qoan
•arTiN, Gill! ■( atTNtu Uiwti fmutb : omiim (t tarrar «•!, isDnM liMula catiUU* ; ^U*
nbi raonrvtiB. <f^ tinwiv dcatoristi odiMabdptat.'— TACtnm: yUa Aficalm.ctp.
xsjdL
* Tho FnbisUrt, Km. 11, S, 7. It iru m is onr ooloai*! ttatt. See 2 GnluaNri
86a
COKSTITUnOK OP TDK ONITED STaTB^. [DOOK in.
not proposed to dislin^ish tho cam of Bcrentl conlodenusies from
Uiut uf » compk-tv it«p»r«tion of all the 8tat«8, as in a general
BonM tho reuLarkfl fpflf vith irresistible, if not will) uniform,
force to each.
§ 472. Dock, tlivn, tliv extent of our territorj form any solid
objection ai^inst forming "Uiis more perfect anion "t This
question, so far as rf*|>ect8 (lie original territory included within
th« boundaries of Uie United States by treaty of peace of 1783,
seenu atniiMt settled by the experience of the last forty yean. It
ia no longer a matter of conjecture how far Ute goTenuncnt is
Oftpable (all other things being equal) of being practically applied
to the wfaolo of that territory. The distance between the utmost
limits of our prvsont population, and the diventtty of interests
amaa|{ tho whole, seem tu have precented »o obstacles, under tbe
bt-'urticent ad Diiaifit ration of the general gorvmmeni, to the roost
perffct harmony and gvneiml adnmeement of all Perhaps it has
boea domoiiatrated (to far u our limited expcrienoe gioes) that the
inetvasod facilities of iutvrcoursu, the uniformity of rognlatioBS
and lavrs, the common protection, the muttukl sftcrifices of local In-
tBrwts, whenincompatible with those of all, and the pride aad ccn-
fideoeo in a gownuncnt in which all are reprcsent*^^, and all tat
equal in rights and prtrilc^es, —perhaps, wesay, U has hctn
dMBOBsCrated that these effeeM ol the Union haT« pmnolad, in a
IdflMr decree, the prosperity ol every i<tate than could hare been
attained by any single State standing aloae in the freest exereisn
of all its intelligence, its Rsooroca, and its institntioos. withoHii
tMij dieck or obstruction dBrin; tbe aaine period. Tbe great '
obuife which has been made in our internal ccsidition, as wvll as
in ont territorial power, by the aoqnisitign of Looiaiana and Flor-
ida, hare, indeed, gifcn rise to many seriooa rcOeetkias vbttber '
sueh an expaosion of our empire may not benafier endanger tbe <
original systrm. But time akae can solTe this qaestifai; and tn
time it is tlK< pari uf wisdom Mrd patriotism to lean it.
§ -ITS. Wben, however, thit Coostitativin waa before the peo^
for adoptitvt, objecUtias, aa ha» be«K already m^fgtated,
strennously orvN) asiaiBBt a fcnetal gwrenmetit. fcwmJed
the then ext«^t of oar terrttocr, and tbe aatboj-itT of MiwtnKta
was relted on in san'vK of tike objecdons.,^ Il ta ndC a littW
aarprisiag Oak Honlcsiiaien abaold ban been kHioI vm lor I
.B.K,<L1. 8H«b>l
CH. Tl.]
TBE PREAMBLE.
SGft
purpose. Ho obviousljr had ia tict, wlien he recommenda s
modvrulv extent of territory a» best »mtM to a republic, small
stuti^-iS wIiiiAC ijiim-ri8tnn0 wcr« far lowt Ihau the limits of uot! half
of Ihii8« in the Union; bo that, upon etriclly folluwiuf; out his
Buggi-iitioii», tli« latter ouglit to have been divided. But hu sug-
gests the appropriate rcinedj- of a confederate republic (llie very
forui adopttnl in the Constitution), as the proper iiit.-ans of at once
securing flafety and liberty with extensive territory.* The truth
in, that what sim is safe for a nation, with a view to the protec-
tion of its rights and liberties, is a question which admits of no
univcnuil solution. Much de)(en(U ii)>on its local )>osition, its
DclghburA, ita rcouurces, the facilities of invasion and of rupcU
ling iitvafiion, tlio gvDoral state of the world, the means and
weapons of warfare, tlie interests of other mitions in pnMun'ing
or duitroying it, and other circurastniiocK, vrhioh scarcely admit
of cunmcnilion. How far a re|iublicAn govenimeut can, in ft
confvdi-rated form, be c.vtt'uded, and 1)6 at once ellicient abroad
and at hunii% van insure general happiness to its own citiicns, and
Lpcr)>etunle the principles of liberty and preserve the sidiiitance of
'justice^ is a gi'cat problem in the theory of governmont, which
America is now endeavoring to unfold, and which, by tlie bless-
ing of f!od, vre must all earnestly hoi)e tliat she may snocessfully
demonstrate.
§474. In the mean time, the following contnidoratioiLS may
ervc to cheer our hojies and dia]>el our fears: first, (1) the ex-
ent of territory is not incompatible with a just spirit (A patriot-
ism; (2) nor with a general representation of all the interests
and population with it ; (8) nor with a duo regard to the peculiar
local advanlagcfi or disadvantages of any part : (4) nor with a
rapid and convenient circulation of infonnution useful to all,
whether they are rulers or people. On the other hand, it has
^flome advunta)^B of a very important nature. 1. It can afford
Pgreator protection against foreign eitcmics. 2l It con give a
wider range to enterprise and commerce. 8. It can seeurc more
■thoroughly niitionul independence to all the great interests of
FBuciety, agrieullure, commerce, manufactures, literature, learn-
ing, religion. 4. It can more readily disarm and trantiuilliite
flomestic factions in a single State. 6. It can administer jus-
l n» F«J«nlbl, Ifo. B ; I WUmo-* WotIu, 317 to U» ; 3 WU»i>-. Wotk.. S7g to
m.
860
coNSTtTunon or the ukited stateb. [book m.
Uoe nan eonpletetr snd pcrfecUj. fl. It can """"""t
revemics for pablie objevU vitboot cippreaaion or heavj
7. It eaoeoofiODiiseraotv imil itsintemiJkrnuii^eaieDti,
emr necewry. In duni, as has beoi said vitb equal tnAh aod
fane, "Ooe gorentment can collect and avail itscU of tbe lakato
and experience of tfae ablest men, in wfaaterfr pan of tbr UiwM
they m^y be foood. It can move on onlfonn principla of pot-
iej. It can harmoDUDe, aanmilate, and protect tb* aertia] parts
and members, and extend tbe benefit td its foreu^ and pc«ea»*
tions to each. In the formation of treatiea, it will regaid dm
inteteatB of tbe whole, and the particular intereau of tbe parta
M **tf'****^ with that of tfae TfaoI& It can applj tbe
fli fite vkole to the defence of anf partJeslar part, and that
<anlf and expedilioaslr than Stata govenmento or aeparate <
federacies can poaaiblt do, for want of oanccxt and mutr of sj»-
tern." 1 Upon aoate of theae toptes we m^ «alwi9" bereaftae.
■TlKFBbnbl.!E<Ll. T^fcB— <ifiiiiniiWiaa«y liiili i.»».«.|— ^
ruHca^Of mHw>liWlfci>iliiiiijiliBrfAMri«»»*i*|^
-Km, i» Att^v^vas, tB^Kftmm ma»MliiwtVj ^ pufb k Mtateil M
tr A* |Mfi* h k« dMM hMx
, nl tlM tka fMM aOaa*! !• «ck Hbdl-U-I «»->« •
t *S1 aMlMl mA Mkcr. « tW
*»'
I rti m III II if iri iiiiii. • 111
l«fll
> M «i> !««» n ai^Mt fMUaMte ar > H^Maj if a* «Mt >«7
.ga^l^wiCiwMiL I^fcf ail|ii 1 Mil
iiiiiirtj iiln [■ Mbm- iiln ■ rf
of Ite J -J. IbC H ^ *•
Elf ihi
TMte aD MthM^Tf ka b «ffi W temd hiM.
lWw(M4^itair«aWb^HalMw«BiTr«l^ ^iJii^«
r Ikat tha l4^M <f BfivUMk w >f tih BtlBiailr «a b ia aill*
iarth*Mvoi9- taata>^MaMi^lh>«aeiii
CH. TI.]
TBE PItRAMBLlt.
861
§ 475. Tiio union of th**e States, "the more perfect union,"
18, then, and nitiKt forever be, invuluublo to nil, in rosgNKt both
to foreign and domestic concerns, j It will prevent some of the
ctiucs of wnr, that soonrgo of the humnti race, by enabling tbe
general government, Dot only to ivogot)«t« suitable trc'sties for
the protection of the rights and interests of sll, but bjr compel-
ling a genpral obe^Jience to them, and a general reaprjct for the
obligations of the lav of nations. It is notorious that, even
under the confederation, the obligations of treaty stipulations
were o]>only violated or silently dinreganled ; and the pence of
the whole confederacy was at the mercy of the majority of any
otiHtarcMU, and, la tht oUibt, <b thamuIltpUdljef mcU. TIm df^TM of Mcurit]r io
botli ouM wilt d«i<tn<l on Um iiaiiiWr of iiil«i««t« and •fcU ; &iid Ihu may be pnnini«d
todqiMid DO tbd extontof couiiti7 and numln of prnflBOOtiifnlMiideil under Uicauaa
gnvenuDFtii. Thia Tie* ot tlis ntlgtctinuat putfMkriy noeommand « ptoptrFMlcml
qrHcm to all the atncan and Mnridoata Mend* td NpaUicaii goveniinutt ; lino* ll
ahom, tb>t la mmcI (voportion aa the Unberj ef tha Ualao may ba formed ialo niurt
drcunuoKbcd oonlalmuiM or SlatM, e|i{inM(T« «enitiia«tiaii« of a nii^oiitf will ba
beOtlatad : tin beat •ncvritj', mdcr the nfmUwan (onn. foi tha rigbta of tvrrj clu* of
dltaoOrill ^ dloilalibed ; awl, Mtueqiwiitlr, llie (UUIttj ud iiid«|inid«Me of aaiM
manbat of tlu ^vmim«ut, tli« oolr otiMr aecuriiy, rauat ba profMrtlonaUjr tocraaaad.
Jutice U ibo *iid orgoveniinriit. It U thi> end of civil Bocistir. It einr hu Imu, and
avf will te, ponued until it ba obtaiii*4 o' ""^^ liberty be lo>t in the ponuit. In •
tavMj under tha foraw of which tba alronger tWtion «■& rMrdUf unite and opi'nM tlia
weakw. aoartlijr ma^ aa tralf be said to ndgn u in • aUto of B*tui« wiiMi tha wmkOT
Indifidad u not K«und i^mt the Tiolanae of the atTougar. ^d. u ia tba latin
Itat^ avcM the drongcr IndiTiduala are prompted bf the unoMtaintr of their condition
to lubmit to a t^'viTninrat which may iirotcct tha weak, aa well aa llioniMlT«i^ to, in
tha bnnsr atata, will tha mora pcmarf&l fattiona b( gradually Induoad by a Uka notlva^
to with for a govmunent wlucb mil potcet all frtim, tb* wnlur ai vail aa tha mMa
powcrfnl. It cna be little dcnbtod, that tf the Slate of Hboifc Uaikd w«a wp«nl«d ftaa
Um ooafedcne; and bfl to UatU, tho inaacorily of tjghta, under tlu popular lenn of
fpTBrnnimit wilhla auth narrow* limlla, would ba diaplaycd by ancb r<!itf nted oppn^
tioaa of tha ftctiovt nia^liea, that aoma paw«*, altottrtlwrlndvpondenl ol the paopt^
wouU torn be called for by tha Toka of the nry tuniou* whota Diianil* had praaad
the tHcawity of it. In thesitonded repuhlieof the United ttbtei, and aiiiniiKibegrtat
Tailtt; of lutanota, piiti<«, and wcta which It fabraoaa, a coalition of a tn^oKly of the
whoU tocMy eouU aeUom take plaot npen any other [dnclplea than thoM of jnrtiea
and tliF general g^ [ whilat there btinf; thoa Itaa daaft'* *> * minor, from Ilia will of
the major party, then nmrt balawptaleitalaotoptDnJefotlMiMarityctf the turnatr,
bf Inlradndi^ into the fMumniDnt ■ trill not depanibnt oa the I*tt<r ; a, in other
wonb,> will IniUptnifealaf thaaocle^ltMll It iaMolaMort^ tliat it i* important,
Botwtlhalandlnf the oontrary ofrinlona wUdi hsve baMa»t«f1alned, that the huger tha
aeciaty, ]<^)T)>lod It lie within a fnclioaUe aphnv, tha ntor* duly eapabt* It wUI ha of
wlr-covpniBiFiit. And, happily for tbe rc|iublioaa oiuaa, the practkahla aphera may ba
carrietl to a ver; ftnu uttnt, by « judieiooa Medificaticti and niztura of tha Fadanl
faineiido."
862
CONSnUTIOH OP TBE UNITED STATES. [BOOK m.
single State. Jf the States were Bep«ratod, they would, or might,
form Bcp«rato and iudejiendeDt treaties with dilTcrcnC oatioDSt'
according to their peculiar interests.' I'hese treaties would, or
might, involve jcalotwies and ri^tilriesat home as well as abroad,
and iiitroduoe conflicts between natioiis struggling foranionop*^
oly of the trade with each State. Retaliatory or evasive stiptita-
tions would be made, to ctiunternct the injurious system of a neigh-
boring or dintant State, and ihnu the scene be ag;iin acted over
with renewed violence which succeeded the peace of llSSi, when tho
common interesia were foi^totten in tlie gf^neral stniK^te for su-
periority. It would manifestly be tJio interest of fon>if;a nations
to promote tliosc animosities and jealousies, that, in the general
weakness, the States miglit soek their protection hy an undue
sacrifice of their interesli), or fall an easy prey to their anas.'
§ 476. The dangei-s, too^ to all the States in case of division,
from foreign wars and invasion, must bo imminent^ iii(Ici)t>ndi'nt
of those from the neighborhood of die colonies and dept-ndencica
of other governments od this continent Their very weakness
would invite aggression. Tho ambition of the European govera-i
ments to obtain a mastery of power in colouiv* and distant po»- '
sesatona would be porpotuaUy involving them in embarrassing
negotiations or conflicta, howvvor peaceable niiirlit be their
own conduct, and however iuoffciuive their own pursuits and
objects. America, as of old, would become the theatre of war-
like operations in which she had uo interests; and, with a view
to their own security, Jthe States would lie comjtellcd to fall back
into a general colonial submission, or sink into dependencies t^i
such of the great European powers as might bo moet favorable to
tJieir interests, or atost commanding over their resources.*
$ 477. There are also peculiar iuterL^ls of some of the States,
which would, upon a sciHiratioo, be wholly tuicrificcd, or become
the source of immeasurable calamities.) Ilie Xcw England States
hare a vital inten-st m the fisheries with their rivals, England
And Fraitce; and how conld New England resist either of tbeae
powers in a struggle for the common right, if attempted to be
restrained or atwlished? What would become of Maryland and
Yirginia, if the Chesapeake were under the dominion u( different
foreign powers Je/atto, though not in form t The free navigo-
) Tht F«dmll«t. HaL S. 3, t ; > VOmn't WwU SM-
i-nMr*iOTUrt,Koi.>, (.6.
OB. n.]
TOE PRBAXBLB.
86S
tion of th« Mississippi and th« Uk«s, and, it may be addMl, the
exclusive navigation of tliem, geenu indispcnsablo to tbi; iM.f.-uritj
W well as tbe prosperity of tlie W«8t«rn 8tat«s. How, other-
ivtse thaii by • general uniop, could Uiis be utuint«iQcd or gnar-
l^anteed?'
S 478l (And again, m to commerce, so important to tJio nari-
. gating StalPtt, and ro productive to tiio agrti;ultunil StaU.-it, it
tmust be at once perceived that no adequate protection could be
ligiven to either, unlesa by the strong and uniform ojierationt of a
general governmrnt. ) Each State by itH own rvgulationa would
seek to promote ita own interests, to the riiin or injury of tbouo
of others. The relative situation of these States; the ntmiber of
rivers by wbivb tlioy are intersected, and of bays that wtuili their
aborcs; tbc facility of communication in every direction; the
ftlfinity of language and mannora; tbo familiar habits of inter-
course,— all Ui08« circumstances would conspire to render an
illicit trade lM:twc«n tbem matter of little difficulty, and would
insure frequent vraitiona of tho commercial regulations of each
other.' All foreign nations would have a common interest in
crippling us; and all tJio evils of colonial scr\*itado and com-
mercial monopoly would ))C inflicted upon us by the hands nf our
own kindred and noiglibors.* But tJiis topic, though capable
I erf being presvuted in detail from our past experience in such
glowing colom as to BUirtle the most iucri'dulous into a convic-
titm of the ultimate poverty, vrctchednvsA, and distress which
vould ovcrwiK-lm every .St4ite, doc« not require to be more than
tainted at. Wv have already seen, io our former examination trf
tbc dcfoetM of the confcderntion, tbat every State was ruined in
it« revenues, as well as in ita commerce, by the want of a more
'iefficicnt government*
§ 470. Nor, should it be imagined that, Iiowcvcr injurious to
commerce, the evils would be less in respect to domestic manu-
factures atid agriculture. In respect to manufactures, tbe truth
iA so obvious that it requires no argument to illustrate it. la
[relation to tlie ^ricultural StatcA, however, an opinion has, at
■ Tbe FelUnlis^ Ho. IS. ■ Thi FedenUit, No. 13.
* Tbr PeamlUl. HvL. II. 19.
• Tl>« FnlrMlUt, No. S, 7, n, IS : a miMa'i Wmln, CM ; ] Elliot'* D«bU«^ 71.
Hi : 1 -rockvr'i Bhcfc. Conun. Xff. 1*8, M9 ; Browu >. MMybttd. IS Wrt. R. 419,
4iS, 4K.
OOltenTDTIOK OF TBB OKITED 6TATB9. [BOOK HI.
aome tiin«8 &nd in somo Aectiota of the eoiintr}-, been prcT&lent,
that ttif agriculttirHl iiitcrcttts would be oqiiallv safe vriUioot ttnjr
general KuvcrniDViit Tlio following, among oUier considerations,
nui]: flcrv<; to hIiow- tha fallacy of all ttuoh suj^Kstions. A large
and iiniforni miirket ut home for native productions haa a ten-
dt-ncy to prevpnt thoAO sudden rises and falls in prices which are
ao deeply iiijurioits to the farmer and the planter. The exctn-
sivo possussiuii of the home market against all foreign competi-
tion gives a permanent security to investments which slowly
yield (heir reluniis and encourages the laying out of capital in
agTiciiltural improxTnients. ^upjMse cotton, tolMicco, and wheat
were at all timfis adniitisible from foreign statefl without doty,
vonld not the effect l>e permanently to check any cultivation be-
yond what at the moment seems sure of a itofe sale? Would not
foreign nations \te perpctnally tempted to send their surplus
here, and thus, from time to time, depress or glut the home
market?
§ 4d0, Again, the neighboring States would often engage id
the same species of cultivation, and yot witli very different nat-
ural or artificial means of making the products eqiuilly cheap.
This inequality would immediately give rise to legislative meas-
ures to correct the eril, and to secure, if {lossihle, superior ad-
rautages over the n^-al State. Tliis would introduce endless
crimination and retaliation, laws for defence and lawa for of-
fiDil0& Smuggling would bo everywhere openly cooonrftged or
secretly connived at Ttw rital interests of a State would lie io
many instances at the mercy of its neighbors, who might, at the
same time, feel that their own interests were promoted by the
ruin of their neigfabora. And the distant States, knowing that
their own wants and pur»uil8 were uholly disregarded, woaU
become willing auxiliaries In any plans to encourage cultivation
and consumption elsewhere. Such is human nature! Such are
tike infirmitiiis which history severely instructs us belot^ to
neighbors and rivals; to those who navigate, and those who
plant: to those who desirr, atwl those who rcpion at the prgspcr>
ity of Burronnding States.'
§ 481. Again, foreign nations, under such cireumiitanoes, mtwt
hare a cummoti interest, as carriera, to bring to the agricnltoral
ce. VI.]
THK PSRAHBUK.
S65
States their own manufactures at aa daar a rate a^ poMiblfl,
and to d«pree(t the market of the domcittii: pruduc-ts to tho mitii-
mum price of competition. Tlwy miiitt Itavu a vomuiuQ iiitcrcat
to Htimulalo the noigbboring Htai4« to a ruinous jealousy; or,
by fost«!ring the interasta of ooo with whom they can deal up-
on more advantageous teritts, or orcr wtiom they hare acquired
a decisive influence, to subjcet to a corrcaitonding iufluenco
jothera which stniggle for an independent existence.' This is
not mere theory. Kxnmplrs, and succensful exnmpk-s, of this
policy may be traced throuffh the period between the peace of
LT88 and the adoption of the Coustituliou.
§ 482. Itut not to dwell further on these important induvc*
ments **to form a more perfect union," lei ua poits to (he next
object, which is to "jstahlish jUBticc." This must forever be
kone of the great ends of every wise government; and even in ar-
bitrary goTemments it must, to a great extent, \te practised, at
least in respect to private itcrsona, aa tlie ouly security against
rebellion, private vengeance, and popular cruelty. But$n a free
government it lies at the very baaia of all ilA institutions.' With-
out justice beini; freely, fully, and impartially administered,
neither onr persons, nor otir rights, nor our property, can be
protected. And if Ihefie, or either of them, are regulated by no
certain laws, and are subject to no certain principles, and are
held by no certain tenure, and are redressed, when violated, by
no certain remedies, society fails of all its value; and men may
as well return to a state of savage and barbarous independence
No one can doubt^ therefore, that the cstablishtncnt of juatioo
.mast bo one main object of all our State govcniments, ^ITiy,
then, may it be aski'd, should it form bo prominvut a motive in
the establishment of the national government f
§ 488. This is now proposed to be shown in a concise maimer.
In the administration of justice, foreign nations and foreign in-
dividuals, as well as eitiu-ns, have a deep stake; but the former
have not always tui eom]ile(e means of redress as the latter; for
it may be prestmiod, that the State laws will always provide ade-
quate tribunals to redress the grievonecs and sustain llie ri^lits
of their own citir^ens. But this would be a very LmpeKect view
of the sabjoet Citiiens of eontiguoos States have a very deep
interest in the adminiBtmtion of justice in each State; and even
> Tb« Federmli<t, No*. *. S, U.
rili
366
OOSSTIIunON op TBB OJfrTED 9TATE8. [BOOK m.
those which are mont distant, but Iwlonging to Ute 8ftm« confed-
eracy, cannot but be affected hj every inequality in the provi-
sions or the actual operations of the laws of each other. While
every State remains at full liberty to legislate upon the subject
of Hifihtii, prifilegea, contracts, and remedies, as it may please^
it is scarcely to be expected that they will all concur in the same
general systora of policy. The natural tendency of ^verj govern-
ment is to favor its own citizens; and unjust preferences, not
only in the adminiatrafion of justice, but in the very sfrueture of
the lawB, may rciutonably bo expected to arise.i Popular preju-
dices or passions, supposed or real injuries, the prodominanc« of
home pursuits and fL-elin<ni over the comprvhcmii ve vii-n-s of a
liberal jurisprudence, will n-jidily acliicvo the most mi»<'liievuus
projects for this purpose. And these, again, by a natural reac-
tion, will introduce corrr«pondcat regulations and retaliatory
measures in other States.
§ 484. Nov, exactly what this course of reasoning has led as
to presume as probable, hua Wen doinonntratpd by experience to
be Jrue in respect to our own confederacy during the short period
of its existence, and under circumstanoea well calculated to in-
duce each State to sacrilicc many of its own obJG4?ts for the gi>n-
eral good. Nay, even when we were colonies, dependent upon
the authority of the mother country, theao inequalities ven ob-
servable in tlie local legislation of several of the States, and pro-
duced hcartbumingi) and discontents, which were not easily
appeased.
§ 485. First, in res|)ect to foreign nations. After t1i« confed-
eracy was formed, and we had assumed the general rigfits of wu
as a sovereign, belligerent nation, authority to make captures
'^and to bring in ships and cargoes for adjudication naturally
flowed from tJic proper exercise of these rights by tlie law of na-
tions. The j^tates respectively retained the power of appointing
prize tribunals, to take oognizar»ce of these matters in the first
, instance; and thus thirteen distinct jurisdictions wore vstab-
'liahed, which acted entirely independent of each other; It is
true that the Articles of Confederation hod delegated to the gen-
cral governnicnt tlie authority of establisliing courts for reooiviog
and determining, linally, appeikls in all cases of captures. CoD>
gress accordingly instituted proper appellate tribunals, to which
the State courts were subordinate, and, upon constitutional prin-
CH. TT.]
THIS PRRAMBLB.
ftST
cipIeA, were bound t<t yield obedience. But it is notoriown, chat
the cjeciflions of th« appeUnte tribunnln wem diaregsiniedi niid
treated aa mere nullitips, for no power to enforce thorn wait lodged
in Congress. They operated, therefore, merely by moral infln-
enoe and requisition, and aa auch, noon aank into inHignifinanco.
Neutral individuals, as well as neutral nations, were left wholly
without any adequate redress for the most inexcusable injustice,
dud the eonfvdcra(.-y stihjoeted to imniiuciit hazards. And until
the Constitution of tho United States was established, no remedy
was ever effectually adininislerod.' ^Treaties, too, were formed
by CoMji^ss with various mitious; and above all, the treaty of
peace of 1789, which gave complete stability to our indcpcndeuec
against Great Britain. Th^^e treaties were, by the theory of tlie
ooofederation, aliaolutely obligatory upon all the ^tati.^8. Vet
Iflieir provisions were notoriously nolated botb by State Icgrisla-
Hon and State judicial tribunals. The QoQ-fulfihnent of the
stipulations of the British treaty on our part more than once
threatened to involve the whole country again in war.) And the
provision in that treaty for the payment of British debts waa
praetically disrc-garded in many, if not in all, tlic State courts.
Those debts never were enforced until the Constitution gave them
a direct and adequate sanction, independently of State legisla-
tion and State courts.'
§ 486. Besides the debta due tA foreigners, and the obliga-
tions to pay the same, the public debt of the United States was
left utterly unprovided for ; and the ofllcers and soldiers of tlie
Revolution, who had achieved our indoi)e»dencc, were, as we
have had occasion to notice, 8nfrore>d to langiiish in want, and
their just demands evaded, or passed by with indifference.^ No
efficient system to pay the public creditor* was ever carriea into
o]>cration tintil the Constitution wai adapted; and, notwith-
standing the increase of the public debt, occasioned by interme-
diate wars, it is now on the very eve of a total cxtiuguiBtuuent.
1 fl«a tlie ruolvM uf Caogtmt, Je«iMb«f 1770. ^ SA ; Pantullov «. Doanr, 3 IWI.
SI ; Jtnninp r. Canoo, 4 Cranob. i ; Qualiotm r.-Orpt^», ! Dall. <I9, 4(4.
« Sm 1 Wih'* St«t« Pkpora, 33S I« 8S8 i Ware v. HjHoo. S Dall. B. IM : Ho^
kin* c Bell, S Crmck, 4H ; S Wibon'a Wwk*, 380 ; ChkMlB k G«arga, S D^
41P, 474.
* 5 U^hall-v Ufa of WMUigton. oil. I, pp. 40 to 40; 9 Pitk. HEu. 180 to
183 : Jonroal of Omgnm, 17SS, p. 191 4f Mf- i < VilHB'i Varki, t» ; 4 KlUoi'i
DafafttM, 84.
868
coN'STiTnnoN OP Tar. ukitkd htxtes. [boos m.
g 487. Theie eviln, whatever might be their magnitnde, did
not create so universal a distreaa, or fui much private diflcontcut,
US others of a mora domestic aatare, which were subversiTe of
the fintt princnplea of justice. Independent of the tmju&tiBabte
preferenceR, wliicb wore fostered in taxar of citizens of the State
OTer tiioew! lielongiog to other State's, whiuh were not (cw nor
Blighty there were certain calamities inllicted by the common
eottTBo of legislation in most of the States, which vent to the
prostration of all public faith and all pri\'ate cnMliL Laws were
constantly made by the State legislatures violating, with more
or loss degrees of aggravation, the aacredncas of private con-
tractu. Laws compelling the receipt of a depreciated and depre-
ciating paper currency in payment of debts were generally, if not
onirersally, preralent Laws authorizing the payment of debts
by instalments, at periods differing entirely from the original
terms of the contract; laws susi^nding, for a limited or nncortain
period, the remedies to reco%-er debts in the ordinary course of
IcjjbI proceedings; laws authorizing the delivery of any sort
of property, however ttnproductivo or undesirable, in jmymcnt of
debts upon an arbitrary or friendly appraisement; laws shutting
up the courts for certain periods and under certain circumstaocea,
~ were not inf re(|ucnt u])on tho statute-books of many of the
Htntea now eompuxing tlie Uuion. In ihc niar of all thcae came
the systems of general insolvent laws, schqo of which were of a
permanent nature, and others again wore adopted upon the spur
of the occasion, like a sort of gaol delivery under the Lords' acts
in Snglnnd, which had ao few guards against frauds of every kind
by the debtor, that in practice they amounted to an absolute dis-
charge from any debt, without aiiylbing mure than a nominal
dividend; and aometimcs even this vain mockery was dispenwd
with. ■ In short, by the operations of paper currency, tender laws,
instalment laws, suspension laws, appraisement laws, and iiisoU
vent laws, contrived with all the dexterous ingenuity of men
(^pressed by debt, and popidar by llie very extent of private
cmbarraasmcnta, the States were almost nniTcrsally plimged into
a ruinous poverty, distrust, debility, and indifference to justice.
The local tribunals were bound to obey the legislative will ; and
in the few instancea in which it was resisted, the independence
> S<« CImmv J., in Wan *. JI>ll<w. 8 DkU. ISS.
en. n.]
THE PBEAHnLB.
809
ui tlie judges iras sacrificed to the temper of the timfift.' It is
veil known, tliat Sbays^e rebellion in MaMacbiuiettA to<dc ito
origin frmii tliis sourcv. The object was to proetratc the regular
adiDiniittratiuu uf justice by a system of terror, which should
present the rcoorcry of iloUii and taxcs.^
§ '188. llic Ffilcrulist spcuks on Ibis sabject with uniuiiial
einpl)M>«. "Tho loss which America has sustained from the
pestilent effects of pupcr-moncy on tho necessary conltdonce be-
tween man and man, on the neocHsary con0duiice in tho public
councils, on tho indnstry and moruU of tho |>iwple. and on the
cJiaracter of republican goTemment, eonfltittitCB an enornioiu debt
against the Stales, chargeable with this unadyiscd mea»iire,
which must l<Hit; remain unsatislied ; or rather an accumulation
of guilt, nhicli can be expiated no oUierwiM than by a voluntary
sacrifice on tho altar of jostico of tho power which haa been the
instrument of it"' /"Laws impniring Uio oblitration of contracts
Bre contrary to the first priuciplM of the social cumjHict, and to
CTory principle of sound legislation."* And the Federalist dwells
on the sui.'(n-stiun, that as Much laws ftmount to ui aggression on
the rights uf tliL^ citij!i'us uf those States, whose oEtlxeos are in-
jured by them, they must necessarily form a probable source (tf
hofltilitira among tlio States. Connecticut retaliated in an ex-
emplary manner up<jn euormilifs of this sort, which she thuuglit
bad been perpetrated by a neighlraring State upon the just rights
of her ciliiceiis. Indeed, war cumttitiilcs almost the only remedy
to chastise atrocious breaches of moral obligations and social
justice in rwipeet to debts and other contracts.'
I 48% So, that we see completely demonsttrated by our own
> TbcoMnf Tr«T«tl«. WMdm, in ITOfl, ia Rlioiln Itluil. Uui iBiUncaorihtewtl
whklt iitii fuiiit ui<l illudntss UiP lett, thoug^i itvruuM MtbdUHculItailnvolhan
ENwSlotea of lugDr cxtcat. Tbg jiulgaila tint caw <l«cidad that aU* making P*P^-
nraoey a IoiuIm in piijmmt of dabu vac nno«utttatMa«l, and agaiart tbt principLgi nt
U^pM Cluui^ TlxirwnweMBpalbd toafipMrtMAmllialcgHktiinlAnailkateUieiii'
«dlT«i i aad (Im next jT*t (1k4u|| liumut aiunullf ) tlwjr wen left out of eOc* lot iio«a-
Uokiag tba Isgitlalivc pcnvr. (sj
* AManUiriUroorWaihii^bm, lU, 11S,««.: S Pitk. BbL 114 ; Utnot'a H«>
toiy 0f Iha luiuTrctioa la MMMcliniotta.
• Tlic FfdenlUt, X<k U. * 14. • Id. So. 7.
[a] Sc« lUi ease and nioUicT one In Ohio, nttmd to In Cookj'i CouUtutloul
Umlutionii, ISO, a.
voui — m
870
cossnTunos or the ujhted state3. [dook m.
history the importance of a morfi effectual cBtablisbmcnt of jiw-
tlce under the auspicvs of a national ^vcrnmcnt.*
§ 490. The next clniisi' in the preaniblc i» to 'linBiiri' ^loincsfie
tranquillity)" The iUuBtrationii apprupriatv to ihia hmd hai-c
been in a g^t measure anticipated in our prerioiw olMen'atioiiA.
f The Dccurity of the f>tat<! a^ainnt foreign influence, domestic dia-
ftCnsioD«, coniniei'cial rivalriea, legislative retaliation!!, territo-
rial dlspiitefi, and the petty irritationa of a border warfare for
priv[leuT^«, exnmptinna, and cimiiggling, has been already no-
ttced.' The very habits of intercourse to which the States were
accustomed with each other during their colonial state, would,
aa has been jnatty remarked, fpvc a keener edge to every discon-
tent excited by any inequalities, preferences, or exclusions, grow-
ing out of the public policy of any of them,* These, howewr,
are not the only evils. In small commimities domestic factions
may well l>e expected to arise, which, when huuest. may lead to the
most pcmieious [mblic measures; and whua corrupt, to domestic
> Ute ienMJ%> of Kr. ChM ivMet Jay to ChbbolB ». 0«argte (S D>IL B- 419,
4T<) illiutntc thd ttatb of thoae itMCwinp in an intomti^g muistr. " Frioc u> the
itXt," MJ1 be, "oT tiw Coiiatttat)aii,t)ie pnph had n«t uiir nitioOBt Uibmn] towUch
Qwj oonU mon Cm jnitkn ; th« dUtrihatloii of jiutko VM Uwn cantavd to SlaU Jndl-
e«lsti««^ in whon iiMlltuUan Hid orgaalnllan th* p«o|>le of tht athw Stain bad na
' pftiopatiea, ud ovw vhom thej had aot Mm UnA coatroL Than wm tbrn no
gUHfil oosrt of qip«1kt« jvrudktioa, bjr whom tlw tnwt ef fiuti cenitiv aSectUg
•ItW Uw Mllon M lw|i «t At cttlna* ot taij oiiur StaU^ ooaU tm nrtanl wd
tmmstiA. Etch Scata wta eUlgid to aoquican to Uw mmma* of JuMia whldi ■■»•
otkr Stats night jritM to her or to bet oUioM i ud that eran in eaica iTh«n Sum
' eouUaiadon* wan not dwajB farambU to the bm( asaet nicamn. Tkrrc «u dancer
tltkt t*am thii MntM aninuMtica voold in tima naslt ; and ni the tnuulioD frooi *nl-
■DcalliM to tiMlilltUa WM fr«iMnt in tba bitfotj of indcfaadint lUtni, a oonaMfi
tribanal for Ihe imntoattoa of oontmnniM bocamo dadnttlt, Horn pMitei both of
Justice and of polk j.
" Prior »1m to tiMt pttiod. tlio IFnitcd StatM had. hf taking a place mo^ tba
nation* of Iho rarth, bcconio uncnaUe to the lam cf Mtloni ; and It urn thtir tot««al
Bi vtU •• tb<ir dutjr to prarlde that thoac lam AonM bo IMpactod and ot«7«d. ta
Ibtir natlooal tfaanctor and eaparitf, tiia Unibnt fttatat ntn ncponoiUB to fmlgn
BMlonalortlieoaadDctaf iathStatanlatintotlielBwaiif Mllnnr and tha parAwM-
I RK« of traun i 8>d Ihwv tlw tooipMUtncr of nfoniaK all awii ^wmIoibi (o Siata
Conrti^asdlwllcnUrlr tothaoaot1>ofdctiaqw«t8tat«a.1i»canMai>pai*sL Wbll' nil
the 8tat« were bottod to pntert tatb, and the dtiaBu of each, H wm Until; |<*vp«' awl
nawniMe that tivtj ibaald be to a oapacftj, not ooljr to caoHi JnKko l« b« liono to
aachaad thodliwuBof aadh bat abo tomuBjii>ti« tob* dona b; oubaad Uwott*
•Miaof fBck ; and that, not \rf Ttolonoe and lom^ bnt la a atatda^ (okta, and T<«alar
dNtmofJu^dBlpraoedMa." Sm aba 2 Onhaaca Htit. Apfc. 4M, tM.
• Tho FodarJfat. No^ «. 7. II i U. Jto. 7.
CH. VI.]
THE PREAMBLE.
871
ituuiTcctions, and even to an overUirow of the gorernmont. The
dangers to a republican government from tliis source have been
I dwelt upon by thp advocate* of arbitrary goveninient with much
I exultation; and it must be oonfisBcd, that the hifttorv of free
[govemmontfl haA furnished but too manyexamplca tn npoloj^izo
for, thoup^li not to jiintify thrir arfrunienta, drawn not ontj against
the forma of repiiblicau government, bnt againat the principle*
of civil liberty. They have pointed out the brief duration of re*
publics, tho factions by which they have been rent, and the nii»*
cries which they have suffered from distracted councils, and
time-serving ]>oIicy, and jwpular fury and corruption, in a man-
ner calculated to increase the solicitude of every ivoU-wislicr to
the cause of rational liberty. And even those who are must
favomble in their viuws seem to huvo thought that tlti- experience
of tJic world had never yet furnished any conclusive pnHrfs in its
support' We know but too well that factions have been the
'ipecial growth of republics. By a faction, we arc to understand
a number of citizens, whetlier amounting to a minority or a ma-
jority of the whole, who are united by aomo common impulse of
fpasaion, or interest, or party, adverae to the rights of the other
citizens, or to tlio penuonent nnd aggregate intcrcsta of the
commimity.'
§ 4111. The latent causes of faction seem sown in the nature of
nan. A seal for diGTereot opinions concerning religion and gov>
vnunent, and many other i>oin(«, )>oth of speculation nnd prac*
tic«; an attachment to different leaders; mutual rivalries and
animosities; the restlessness of ambition; the pride of opinion;
tJie dcftire for popular favor, commonly sugiply a ready origin to
factions. And where deejier causes are not at work, the most
trivial diffei-cnces, and the most accidental circumstances occa-
I sionally excite tlie most severe conflicts. But the most durable
as well as tJie most alarming form in which faction has dis-
played itself has grown out of the unequal distribution of prop-
erty. Those who liavo and those who have not projierty have,
and must forever have, distinct interests in society. The rela-
tion of debtor and creditor, at all times delicate, sometimes as-
sumes a slinpo winch threatens the overtlirow of the government
itself.*
§ 492. There are hut two methods of curing tlio mischiefs of
> The Ftd«nU>t, Ifo. 9. * Id. N«. 10. ■ [d. N«i 10,
872
CONSTITDTIOK OP TUB tlKITBD STATES. [BOOK HI.
(juitiun: the one, by remurinj; ita causes, vbicb, in a free gov-
unitoeotf U impractioible without the dctitruvtion of liberty; the
other, by cunlrallinR iIh cffM.-tiiJ If u fuctiun be a minurity, the
najurity may apply the projwr corrective, by defeating or check-
ing tho violcnco of thu minority la the regular ccuno of lo-
RiHlktion. In Binnll Ktute«, huwe^-cr, this is not always easily
attninnblo:, from ihv difliculty of combining in a permanent form
Kufiicient intlueuoc fur ttiis ])urp080. A feeble dumealic faction
will naturally avail itself, not only of all accidentitl causes of
ditMiilidfaotion nt liome, but also of all foreign aid and intlueiuw
to carry its projects. And, ind<.>«d, in tho gradual ojierations of
factions, 80 many combinationR are formed and diHfioIred, so
many jirivato resentnicnts t)econto embodied in public measures,
and HHcccsa and triumph so often follow after defeat^ that the rem-
nants of different factions, which have lia<I a brief sway, how-
ever hostile to each other, ha\'e an interest to unite in order to
put down their rivaU. But U the faction be a majority, and
ttliLnd tmoheckcd, except by its own sensi' of duty, or its own
fears, the dangers arc imminent to all tlijee whoso principles, .
or interesta, or characters stand in tho way of their supreme /
duniiiiioit.* '
§ 493. These evils arc felt In great states; but it bos been
justly ob«errcd that In small state* they are far more a^r^ravated,
bitu-r, cruel, and permaneut. The mo«t efl'(s:tual means tu con-
trol such effects seem to be in the formation of a cuofederato
rapuUiiN, comnisting of Si'veral stales.* It wilt bo rmr«, ondcr
sucli oirvuuistances, if proftcr powers are confided to tbe genenl
government, Ihat the state line does not form the natural, as it
will tlio juried iotional, boundary of the uj<cratii>us of factions.
The authority of the general go\-enm)ent will hare a natural ten-
dency tit suppress the nolence of faction, by diminishing the
ehonees of ultimate anoceas; and tbtt example of the nrichboring
states, who will nrelf, at tbe aame lime, partake <rf the same
or ba\-e tba same cnuses to excite them into aetion, will
if it does not vhoUr diaaraa. the vlolenee oC the
jyedaminaat factiutt.'
$ 4M. Obo at the ontinazr raolls of dtsonion anm^ ari^
boring atataa is the neceaaitr of cnatiDg and kecftiof op \
^iaf atmian. and other instituiqna anfiiTwablc to liber^.
CB. Tl. j
TBB PUEaMBLB.
873
Immediate dan^ra from nuddcn inroadii and inraslonis And the
|>er{>(!tual jeolousieti and discordit incident to thoir Uical {MMitiou,
compel them to resort to the establinhtnont of armed forces,
eithor disproportionate to their means, or inadequate for their
defence. Either altc-rnutiv<! is fraught irith public mischiefs.
If they do not possess an adoqnato military foroe to repel inra-
sitm, thi-y havo no swurity against agression and tnnult If
thi'y pussvcs an adequate military force, there is much reason to
dread that it may, in the bands of aspiring or corrupt men, be-
come the nii-ana of their subju^lion.^ There is no other refnge
in such cases, but to seek an alliance, always uneKgual, and to be
obtaiuod only by important concessions to some powerful nation,
or to fonn a confederacy with other states, and thus to secure
the co-openitiou and th« terror of numbers. Nothing has tto
strong a tendency to suppress hostile cntvrprtscn as the con*
eeiuusni-ss tliut they will not Im easily successful^ Nothing is so
sure to produce moderation as tlic consciousness tJiat nwistonce
will steadily maintain the dictates of justice. Summary, nay,
eTcn arbitrary, authority must be granted, where tJie safety of a
state catmot await the slow measures of ordinary- legislation to
prote<;t it. I That govemm^iiit is, tliorefore, most siife in its
lilierties, as well as in its domestic peace, whoso numbers con*
Btitute a^reTentive guard agaiot all internal as well as external
attacks. J
§ 49^ Wc now proceed to the next clause in the preamble,
to ** provide for the common defence. " And many of the coniiid-
erations already stated apply with still greater force under this
head. One of the sureat means of preserving peace is said to be,
by being alwayn prepared lor war. But a slill more sure means
is tiio power to repel, with effect, every aggression. That power
can scarcely be attained without a wide extent of population, and
at leant a moderate extent of territor%-. A country which is largO
in its limits, even if thinly peopled, is not easily subductL Its
variety of soil and climate, Its natural and urtifteint defences,
nay, its very poverty and scantiness of supplies, make it difficult
to gain or to secure a permanent cumjucst It is far easier to
overrun, than to subdue it Armies must be divided, distant
IKMts must he maintuined, and channels of supplies kept con-
stantly open. But where the territory is not only large, hut
874
ooNsrrruTioH op the DxriEo states. [book m.
populotu, pGmumi-nt conquest can rarely occurJ iinlcM (which id
not our case) there arc very powerful nuiKhbors on every side,
liaviiif; a common intorrst to ussiiit vnt'lt uthor, and to »iil)jugnt«
their enemy. It itt fur othcnriittt, where there are muuy rival
and independent atatea, Iiaving no common union of j^vemment
or intcro8l8. They arc hiilf 8iilKlued hy their own diitwnsinita,
jcalousieis nnd reiteulnienta before the conflict is begun. They
are caaiiy ninde to act a part in the (le:stntctioR of each other,
or easily fail a prey for want of proper concert and energy of
operatinns.
§ 4li<!. Uesides, the resonrres of a confederacy must bo far
greater than those of any single state belonging to it, bntli for
peace and war. It cnn command a wider range of revenue, of
military power, of naval arniaiuents, and of productive industry.
It is mor^ independent in its employments, in its capacities, and
in itft influences. In the present state of the world, alfcw great
powers poflsess the command of commerce, both on land and at
sea. i^n war, tliey trample upon the rights of nculrnls who are
fechid; for their weakness fumishcH «» excuiw holli fur »ervili(y
and disdain. In [icaci.-, Ihcy cuutrol the pursuits of the rvnt of
the world, and force their trade into every channel by the activity
of their cntcrpriHc, their cxtcuHivc navi^tioii, und their flourish-
ing nuinufactures. They little regard the complaints of those
who arc subdivided into petty states with varying intcrcHts; and
mw them only sa instruments to annoy or check the enterprise
of each other. Such states are not formidable in peace or io
war. (To secure their rights and maintain their indcpeodenee
they must liccomo a confederated nation, and spi^k with the force
of nnnilHTs, as well as the elwpicneo of truth.' The navy or
army which could bo muintained by any single State in the
Union would be scarcely formidable to any second-rate |)ower in
Europe. It would be a grievous public burden, and exhaust tbe
whole rcaonrocs of the State, But a nary or army for all the
purposes of home defence or protection u|X)n the ocean is within
the comjiods of Uic resources of the general government, without
any scwre exaction; and with tlie growing Ktr\-iigili uf the
Union n)u»t lie at once more safe for us, and more fomiidabte to
foiviirn nndnns. The meana, thereiore, to [.r " ". ' i! , ,ni-
moti defence are ample; and they can only bt- n . i .nd
I Umi FodnlM, So. 11.
CB. VI.]
TQB PKEAHDUL
m
inaditiiiato by a (U%-ision uno»g the States, and a want of nnitj
of oponil iitiut. I
* § 4»7. W« pMft, la the next plaw, to tJio clanso to "promote
the ffi'iiornl wolfarb." Aiid it uuiy bo asknl, aa Ihe State gov-
eninii-iili« arc fonnetl for tho anntc jiurpoau by tbc people, wbjr
' ghoitld tliia be 8«t forth as a peculiar i>r prominent uj)ject of the
Cnii»titutiiin of the Uiiitcil States? To audi an liiqiiiry two gen-
■eral answci^s maybe given. Tho States, se)uintt«l}', would not
tposseaa the mcami. If they did poesess the utenna, tlicy would
not posseHs the power to carry the appropriate nieosurca into
operation.
§ 498. First, in respect to meana. It i« obvious, tliat from
tlie local position and aiiut of aeveral of the States, they must
fc»«ver posiiesa but a moderate revenue, not more thai) what is
indispenaaltle for their own wants, and, in tho stricteat sense, for
domestic iuiprovementa. In relation to otbers more favorabljr
situated for commerce and navigation, the revenues from tasa-
tion may be larger; but the main reliance must be placed apOQ
the taxation by nmy of imposta upon importations- Now, it ia
obviout), from the remarks already made, that no peTmanent
revenue can l>c raised from this source, when the Stales arc scp*
arated. The evasions of the lau-s, which will conntautly laka
place from the rivalries and various interests of the noi^iboring
Stdtcn; the farililies afToi'ded by Uie numorouA harbors, rivers,
and bays which indent and intersect our coasts; the strong in-
terodt of foreigners to promote amuggling; tlie want of uniformity
in the duties laid by the different States; tbe means of inter*
course along the internal territorial botmdariea of the commer-
^eiat Statea, • — Ihene, an<l many other causes, would inevitably
to a very feeble atlministration of any local revenue system,
and would make ita returns moderate and uusatiafactery. AVbat
could New York du witb a sinjile se»|iort, surrouudi-d un each
aide by jealous maritime nciithburs with numerous ports ? What
could Msaasi-husetts or Connecticut do with the intenncdiato
territor>' of Rhode Island rinminfi; into tho heart of tJic States by
water communications adniirnbly adapted for Ihe security of
illicit trade? What could Maryland or Virginia do with the
brottd Chesafioake between thorn with tla thousand landing-
places? What could Pennsylvania oppose to the keen rcaent*
> TiM FMrnlifl, No*. S(, ».
876
CONSTITUTIOH OP THE tTNlTEO STATES. [BOOK HI-
ments or the facile polio; of bcr weaker nei]i:hbor, Delaware ?
What could any single State on the Mi»ai»8ippi do to force a
ateadf trade for itaelf with adequate ))rote<:ting duties? In
abort, turn to whichever part of the continent w« may, the iliffi-
cultiea of maintaining an adequate aystem of revenue would be
inaurmountuble, and tho cxpcuaeii of collcctiug it enormous.
Alter Bomc fc-w atruKgles for uniformity, and co-operaliou for
□iiitual Huppurt, etich i^tute would sink t>ack into UkiIims iiidiffer-
ence or gloomy deapondoucy, atid rely, priucipolly, u|>un direct
taxation for its ordinary supplies. ' The oxperienoc of the few
ycara «iic4;eeding the peace of 1T&3 fully justifies the worst
approhenaions on this head.
§ 499. On the other hand, a general government, clu(lK-d with
suitable authority over all th« States, eouM wiaily guard iho
whole Atlantic coaat, and mako it the interest of alt bouorablo
merchants to assist in a regular and punctilious jiaymeut of
duties. Vessels arriving at different porta oi the Union would
rarely choose to expose thcmaclvca to the perils of eeiutre, not
in a iiingle Statu only, but in evury State into which tbe goods
might be succuttsivciy imported. The dangers u]>on tho coast^
from tho vigilant operations of tho revenue oiTicem and revenue
vnacis, would be great ; and they would be much enhanced by
tho cxpciutca of concealment after the gooda wei-o landed.' And
the bict has corresponded with tlie theor)'. Since the establish-
mcntof the mitional govermueut, tbere haa been comparatively
little smuggling on our coasts; and the revenue from the duties
upon importations has steadily increased with the development
of tbe other resources of the country.
g 500. And this leads us to remark, in tbe next place, that
tbe cstaldiahment of a general govorunicnt is not only bi'iiericial,
as a source of revenue, but as a means of economy in its colleo-
Uon, distribution, and oxpenditura Insitead of a large civil list
(or each StJite, which shall bo compet^tnt of itself to diacharge
all tho functions applicable to a sovereign nation, a compara-
.tivoly amall one (or the whole nation will auITic4> to ciin-y Inin
' effect its powers, and to receive and disburse its roTcnm-s. Bo-
aidea the economy in the ciWl department, wo have already seen
how mueh less acliml oxi)enHitures will be ni-cewwiiry for tbo
, military and navul dcpurtnieuts, for the security of all the States,
I Tb P«d«n}l«t, No. la. ■ Tbt FadonlUI, No. 13.
OB. TI.3
THK PREASIBLB.
877
than vmild be if ench were compelled to maintain at rII po!nt«
iu iixlc^ioiiOvnt sovervigntj'. No fortiricalJoiis, no commaudlng
posts, no naval flotilla, will be nocessarj to gttard tlie 8tat«8
against ea<:h other; nnr any oorp» nf nfTic^ni to |>rotect tbc froQ-
tiere of each againnt inraaion or xmugi^ting. The exterior boun-
darjr of the whole Union will be that alone which will require to
bp protected at the national <?X|iriiBP, ' Iteaidea, there will boa
imifurmit}' of oporatiuas luid arrangementa upon all subjects of
tlie common welfare under the guidance of a single head, instead
of multifarious and often conHicting urstenis hv diiitinct States.
§ 601. But if the means were completely within the roach of
the several States, it is obvious that the jurindictioa would be
wantiu); to earn,- into effect any Rreat or comprehensive plan tor
the wolfsrv of the vrtutle, The idea of a permanent an^ 7.caloua
eo-operalioa of thirteen (and now of t«-enty-four) distinct gov-
ernments in any schento for thf? common welfare, is of itself a
visionary notion. In the fimt place, laying aside nil local jeal-
ousies and accidental jars, there is no plan for tlic benefit of the
whole which would not bear unequally upon some tiarlicular
parts. Is it a regulation of commerce or mutual intercourse
which is proposed T Who docs not see that the agricultural, the
manufacturing, and the navigating States may have a real Dr
suppofie<l difference of interest in its adoption? If a system of
regulations., on the otlier hand, Is preiMrt-d by a general govern-
ment, the inequalities of one part may, and ordinarily will,
under the ^lidance of wise councils, correct and ameliomte
those of another. Tlie necessity of a sacriBce of one fur the
benefit of all nmy not, and probably will not be felt at the mo-
ment by the State culled u{>on to make it Hut in a general gov-
ernment, representing the interoats of all, tlie ancriflce, though
ftrst oppueed, will, in the end, l>e fotmd adequately recompensed
by other substnutinl good. Agriculture, comnicrcp, nianufac*
turcs, may each in turn be compelled to yield soiiiething of their
peculiar benefits, and yet, on the whole, l>e atill each a gainer by
the general ayst^^m. Thn very power of thus redressing the evils,
felt by each in ita intercourse with foreign nations, by prohibit-
ory regulatioiui or cmmten'ailing duties, may socure [icrmanent
privilegeft of an incalculable ^■alue.' And the fact has bei-n as
theoretical reaaoning would lead us to suppose. The navigation
> Th« r*il«t>Ufl, Hat. IS, It, * Th* FcdcnliX, No. 11.
878
coNsnTtmoK op the united 5TATSS. [book m.
commerce, llie agriciiltore (ind iitanufnctures, of all Iho
CB ttnt'c received aji advnnceniciit in every dircclioa hj the
union, wliicb lias far exccodeil the most saogaine expectation of
its wai-meat friendi).
§ 502. But tlie fact atone of an unlimited interconrse, without
duty or restriction, between all the States, ia of itself a blerain^
of almost inconccivablo value It makes it an object witli each
permanently to look to the interests of ull, and to withdraw its
operations from the narrow sphorc of its own cxelusivv territory.
Witlioiit eiitcrintf hero into the inquiry, how far the )^-ni>ral gor-
ernint-nt puesiiiiu.'s Hiq power to make or aid the making uf roads,
canals, and otlior general improvomeul«, which will pn>]>er]y
urlw in uur futiiro didctissionis it is clear, iJiat if there were no
gfindral Ku^emtneiit, the ititerottt of i.'ach State to undertake or
to [H<omote in its own legislation any such project would be far
Imui strou*; llian it now is; since there would ))c no ocrtainiy ns
to the value or duration of such iuiprovcnienl^ looking beyond
tho boundnrics of tlic State. The conscioiisne«a that the union
lit the Slatf^ is ;>erninuent, and will not be broken up by rival'
ric« or conllicis of policy, — that caprice or resentment will not
divert any State from its proper duties, aa a member of the
Union, — will give a solid character to all iniprr)venient«. In*
de))endent of the exercise of ajiy authority by the general gOT>
ernment for this purpose, it was juRtly foreseen that roads would
be everywhere shortened and kept in better order; accommoda-
tions for traveller would i*o multiplied and an>elinrattHl ; an in-
terior navigation on our eastern side would be opened throu^:hoat
tlw whole extent of our coast; and, by canals and improventenia
in river uaviintion, a bouudloss field opened to enterprise ami
oniigralion, to commoroe aud products through the interior
Statess to lht» btrthest limits of our weatem terriloriea. '
§ 503. raflsing (rum these general considerationa to thoM of
a direct praetieal uatore, let us see bow far certain inisiwin.
eoufcsscdly proiautivo of the general weUu«, haw been, or would
ha, affected by a disunion of the State*. Take, fur exampht, tbs
post-uffioo establi^uuout, the benefits of which out acareelr be
too strongly staled in r«s|iect to the pablio intetvsta or to prirate
ogoveui'^ucf. With wh^ wonderful faiulity it bow WNoanini*
G«tes intelliiii-ncet, and tranamils orders and directioiia, and
■ TbihdMtlKKAli.
CB. TI.]
TUB PBEAHBLE.
879
money and nppotiable paper, to every extremity of the Union.
The goviTiimi-ni in i-nablt-d (o givu the must )>rotDpt notico of ap-
proachinf; dangBrts of Jin oumniAndis il8 wishvs, its interesta, its
duticK, its l»wK, uiid its jHiIicj' to the mo«l dti«l»iit funclionaries
with iuoi-vdilde s|Ki-d. Coini>nre tliis with the old course of
pri^'at« poflta and special exjireHscs. Look to the «st«iuiivo ad-
Tootagcft tu trade, navigation, nitd oommeroe, to agrictilture and
lataufocturcs, in tJie ready dintributioii of news, ul kiiowtvdgc
of marltet« and of tran^ftvrs of funds, independent of tlie itieflti-
Riabl« bletwings of commuiiication liotwcen distant frieiidft, to re-
lieve tJie beaH from itH oppressive anxieties. In our colonial
state it took almost m long a period of time to convey a letter
(independent of the inaccurity and uncertainty of its transmis-
sion) from Philndel|ihia to Boston, ns it now takes to pass from
the seat nf government to the fartbcKt limila of any of tJie States.
Even iindei' the confrderation, from the want of efficient funds
and an efficient government, the poet moved on with a lardy in-
dilTerenee and delay, which made it alniottt iiaelesa. We now
oommiinioate with England and the continent of Europe, within
periods not essentially different from thnse which were then con-
smne^l in passing from the centre to the eastern and southern
limits of the Uninn. ^uppow the national government were now
dissolved, how difficult would it bo to get the twenty-four States
to agree upon any uniform Hvatem of operstinns, or proper appor-
tioiiitient of the postage to be paid on the transmiafiion of the
mail. Hach State roust act contiuuulty byn separate Icgitilalion ;
and the least change by any one would disturb the harmony of
the whole system. It is not at all improbable that before a single
letter could reach New Orleans from EastjKirt., it would have to
pay a distinct postage in sixteen independent States, subject to
no common control or appointment of ofGoers. Tho very state-
ment of such a case amounts to a positive pnjhibition upon any
extensive internal intercourse by the mail, as t\va burdens and
tho insecurity uf the establishment would render it intolerable.
With what admirable ease and expedition, and uoiseli'sa uni-
funnity uf movement, is tho whole now accomplished through the
inslnimentaiity of the national government!
$ 504. Let us take anotlicr example, drawn from the perils of
nangntion, and ask ourselves how it would be [lossible, wiUiout
an efficient national government, to provide adequately for tho
CON'S-nTUTION OP THK UNITED BTATB^ [SOOK in.
erection and anpport of lightliouscs, monuments, bttoys, iind
other guards against shipnTwk. Many ul these arc maintained
at an expoiifio wholly disproportionate to their advantage to tlie
Statt- in which thi-y arc xituutc Many of tlicm ncvRr would be
maintaini-c], (.'.wept for the provident forecast of a nntional gov*
emmcnt intent on ihv good of the whole, and pouceaing powers
•dcquuto to secure it. The same considerations apply to all
measures of iuternnl improvement, eillier to navigTition hj re-
moving obstructions in rivers and inlets, or by erecting fortifi-
cations for purposes of defence and to guard our harbors gainst
the inroads of enemies.
§ 605. Independent of tbeae means of promoting the general
Wi-Ifare, we flliall at once aec, in our negotiations witJi foreign
powers, the vast HU[)eriority of a nation combining? numlK.'rs and
reaources over States of small extent and divided by different
intercata. If we are to negotiate for commercial ()r other advan-
tages, the national gavermuent baa more authority to Hpeak, as
veil as more power to influence, than can belong to a single
Stale. It hue mure valuable privileges to give in exchange, and
more means uf making tliouc privileges felt by prohibitions or
relaxations of its commercial legislation. Is money wanted;
liow much more easy and cheap to borrow upon (he faith of a na-
tion competent to pay, than uf a sini^le State of fluctuating pol-
icy. Is confidence asked fur the faithful fulfilment of treaty
stipulations; how much mure strung the guaranty of the Union
with auituble authorities, than any pledge of an individual State.
Is a currency wanted at once fixed on a solid basis, aud sustained
by adequate sunetiuus to enlarge public or private credit; hov
nmch mure decisive is tho legislation of the Union, tlian of a
single State with a view to extent or uniformity of u]ieruliuns.
§ 506. Thus wc sec tliat the national government, suitably or*
ganized, has more efficient means and more extensive jurisdiction
to promote the general welfare, than can belong to any single
State of the confederacy. And there is much truth in the sug-
gestion that it will generally ho direcU-d by a more enlightened
policy, a more liberal justice, and more cumpri-hensivo wiitdum,
in the application of ita means and its powers to their appropri-
ate end. Generiilly sjieaking, it will bo lietter administered,
because it will command higher talents, more extensive exjHri-
ence, more practical knowledge, and more various information
CH. VI.]
THE PREAXBLB.
8S1
of th« wonto of the wliole coiumuait)-, Uian can Iwlong to smaller
BOcielio«.' Tiic wider th« sphere of action, the less rt-auon there
li to presume that narrow viewa or lociil prcjudiem will prorail
in the public couuoila. The very diventitieH of opinion in the
different representatives of distant regious will have a tenttcncj,
not oiiiy to introduce niutunl concoxxioii and oonciliatioti, but to
elevate the |xili<-y and iustntct the judgment of tJiuse who arc to
direct the public mcouiiireft.
§ 507. llie liuit clau»e in the preamble is to *^ secure tJic bless-
ings of liberty to oureelvcs and our posterity." And surely do
object could I>c more worthy of the wisdom and ambition of the
beet men in any age. If there 1>e anything which may justly
challenge the admiration of all mankind, it is that Hublime pa<
triotiem which, looking beyond its own timp.t and its own fleet-
ing pursuits, aima to secure the permanent bappinetis of posterity
by laying Uic broad foundations of government ui>on immova-
bio principles of justice. Our affections, indeed, may natm-ally
be presumed to outlive the brief limits of our own lives, and to
ropoflo with deep sensibility upon our own immediate deacend-
anta. But there is a noble disinterestedness in that forecast
which disregards present objections for tlie sake of all mankind,
and erects structures to protect, supjiort, and bless the most dis-
tant gcnersliuna. lie who fwmds a hospital, a college, or even
a more private and limited charity, is justly esteemed a l>enofac-
tor of the human race. Dow much more do they dcacrvo our
reverence and praise, whose lives are devoted to the formation of
institutions which, when they and their children are mingled in
the common dust, may continue to cherish the principles and the
practice of liberty in perpetual freshness and vigor!
§ 508. The grand design of the State governments is, doubt-
less, to accomplish this important piu-po»e; and there can be no
doubt that tbey are, when well administered, well adapted to the
cod. But the question is not so much whether Lhcy conduce to
the preservation of the blessings of liberty, as wheUicr they of
tliemselvra fumiah a complete and satisfactory security. If the
remarks whicli have been already offered are founded in soimd
reasoning and human oxpericucc, they establish the position that
the State governments, p^r le, arc incompetent and inadequate
to furnish such guards and guaranties as a free ]>eoplc have a
> TIm FxUralla, Vo. 27.
382
coKSTrrunoN or the dxited stxtts. [wok nii
righfc to require for the maiiit«natic« of their i-ital interests, and
CB)>eci8lly of their liberty. The inquirj then naturally pn>8«ut8
itself whether the eftLaiili»hment of a nntional govemoieot will
olToni more eftectual and adequate Becuritict.
$ &09. I'he fact haa been already adverted to that when the
OoiUtitntion waa before the [)eoplR fur adoption, it naa genernlly
represented by its opponents that ita obvious tendency to « con-
sohdation of the powers oE government would aubvert the State
aovereignties, and thus prove dangerous to the liberties of the
people.' This indeed was a topic dwelt on with peculiar em>
phaaia; and it produced so general sn alarm and terror that it
came very nigh occomplishiiig the rojoction erf the Gonstitiition.'
And yet the reasuQio^ by which it waa 8up|K>rted was so va^e
and unsatisfactory, and the re^isoning on the other side was so
cogent and just, that it iocnu difTieult to conceive how, at that
time or at any later time (for it has often been resorted to for
the same purpose), the sugj^-sliou ouuld have bud any substantial
intlucneo up<Mi the public opinion.
I 510. Let us glance at a few considerations (some of which
have been nlrendy hinted nt) whieh are calculated to suppress all
alann upon this subject. In the first place, the government of
the United Htates is one of limited powcrit, IcAving all residuary
general powers iu the State governments, or in the iwople Iticreof.
The jurisdiction of the general government is confined to a few
enumerated objects whii-h concern the common welfare of all the
States. Ilie State governments have a full snjierintendence and
control over the immense mass of local interests of their re«pec>
live Statpfi, which connect themselves with the fcelingH, the affeo*
tiooa, the municipal institutions, and the internal arrangements
td the whole population.* They possess, too, the immediate
administration of justice in all cases, civil and criminal, which
concern the property, personal rights, and peaceful punsuils of
their own citizens. They must of course posaeas a large share
of influence; and, being independent of each other, will have
many opportunities to interpose checks, as well as to combine a
common resislaDoe to any undue exercise of power by the gen-
eral government, independent of direct force*
• 1 Rltiof* D«b>t«e, 378. 2SS. SOT, SS!, S33 ; 9 Elliot'a tlrht.ua, V, M, 136 ; 8
EDk-l'l t>*haiia, S43, S57, 294) Tlio F«d«nliW. Wot. S», IS, 17, SI.
* IU roUnUtt, No. 17. • U. Sot. It, IS. * Id. No. 46.
CH. VI.]
THE PRKAHBLK.
8«3
§ 511. In thi3 next place, Uip ^tato governnwnts nrc, hy the
ret? Iheoiy of the ConHtitution, ORSontial contit ituent pnrtit of thv
general gnvemment I'hey can exist without the latler, but
the latter cannot exist urithout them. Witliout the intervention
of the State Icginlaturea, the President of the United States
cannot be elected at nil ; and the Senate is exclusively and ahso-
Intely under the choice of the Stat« lefrislaturea, llie Itejire-
Bcntatives are chosen by the people of the Stutfs, So that the
txecntivo and legislatU'C branohca of the national government
depend upon, nnd emanate from the Stntes. Everywht^ro the
Stale novcreigiilius arc reprewnted ; nud the national sovereignty,
as 8uch, baa uo ropre«entntion.' Hov is it powiiblu under such
circiimi^timros, that the nnlioual gnveromcnt can be duti^-ruug
to (ho libi-rties of the people, unless the StatOH, uud the people
of the States, conspire together for their overthrow ? If
there nhotild be eticb a conspiracy, is not this more justly to
bo deemed nn act of the states through their own Agents, and
by their own choice, rather than a corrupt usurpation by the
general government ?
§ •'>12. Itesidet), the perpetnal organization of the State gor>
emments, in all their departments, executive, legislative, and
judicial; their natural tendency to cooperate in cases of threat-
ened danger to their common liberlica; the per|ietunlly recurring
right of the elective franchise, at short intcrvalu, — mtist pi-eacnt
tlte most formidable barriers against any deli1>crate usurpation,
which docs not arise from tho hearty co-operation of the peoplo
of the States. And when such a general co-opcraticm for usur-
patioD sliatl exist, it is obvious that neither the general nor the
State govern mcnt« can interpose any permanent protection.
Each must submit to that public will which created and may
destroy them.
§ 513. Another not unimi>ortunt consideration is, that (ho
powers of tbe p'neral govcminenl will lie, and indeed must Iks,
principally employed npon external objects, such as war, peace,
negotialinns with foreign powera, and foreign commerce. In its
internal operations it can touch but few objects, except to intro-
^duce regulations beneficial to the ctMnmeroe, internonrse, and
other relations between Uie States, and to lay taxes for the com-
mon good. The powers of the States, on the other hand, extend
1 TlM 7«d«iaUm So. 49.
38i
CONsnTDTIOH OV TUB DKITED STATES. [DOOK UI.
to «11 objoctd which, Id the ordioaiy course of sffoira, concera
tho livcH and lilicrtii.-8 and property of the people, tuxl tbo iater-
tiul order, improrciucot, imd jinMipcrity of the St<it«. Tlw opi'r-
atioiu u( the geiicral ^vcruiiiciit will lie iiio«l cxtoiigivu oud
iinporljint iu times of war and danger; ttiose of the Htato gor-
crninoiit^, in ti hips of i>encc and security.' Ind<'pondent of all
uUier cons idr- rut ions, the fact that the States pofiAeas a concur-
rent power of taxation, and an cxcluaJre power to regulate the
descent, deviac, and diAtribtition of estates (a power the most
formidable to despotism, and tho most indispensable in its right
exercise to republicanism), will forever give them an influeoca
which will be lut commanding as, with reference to tlic safe^ of
the Union, they could deliberately desire,'
§ 514. Indeed, the couittunt aiipii'heiisioa of some of the most
sincen; patriots, who by tlteir wisdom have graced our country,
has been of on op]KMlt« character. Tlicy have believed Ihut
the Slates would, in the event, prove too formidable for tbo
Union; tJial the tendcuoy would bo to anarchy in the members,
and not to tyranny in the head.' Whetlier their fears, in thift
respect, were not of iho»e of men ulioee judgmenld weru misled
by extreme solicitude for the welfare of their country, or whetJier
thoy but too well rend the fate of our own iu the history of utlier
republics, time, (he great es])ounder of such prublem», cjui alone
detenninc* The rcMoning on this subject, whidi has been vitli
so miieli profoundness and ability advanced by the Federalist,
> Tht FfiknllK. Xol 45. • Id. N& SI.
* IsJ. Ku*. 17, 45,40, n.
* U. Turgot a|ii<can to h»w bn-n rtroDi^ laipiuwtil «{tb tbf diOcBlty nT ■rialrift'
tng ■ Mttomi gavtniMent nader «ndi drennwtasoes. Im bu Ictttf to Dr. Price ht
Mji : " In Um gdunl mika tt the Suih I do sot «tatm> ■ ooftUtton, a fstloB of all
ibt fmiU to fonn on* hamagMMiu body. It b on); » Jemlilc «f CMnnusiiliM loo ilia-
cenlHit, anil uAiM conUim » iwnlnnf indMcy bi tif^ttum, ««inf U tb« dinnfly In
iMr law*, cuMoMt, and opinLsBi, to iht lDei|inlity of lk«ir pMaml ftmifdi, bvt Mill
■MM Id Uk iMqnaItt]r of Uwu adraneM to gir*t^ atnagtb. It m oafj • copy <t ikt
Dstdi Kpntdk, with this diSeKOoe, tliat iLb Dutch trfnUleliad BOtUag to fgar.HlW
AB«(kaB RpwUic lu«, from iSa htura poolM* hicraMB of uxj am «f tka twoTftia*.
AH thli edUoa lifti herik kUtwrt* NpfMtid ttpon ih* inrnioat tavottUm of the idoa
■notant nd nigut ptley • tqum Uh la^faitiBa th«t oalioM anl AtK aa aodi, nay
kre as iatanrt dktiMt htm tbo ialMEOt irUoh Mitidoab kn U b« tim. nd datad
thdr ((ofartj agaiaat th* attaok* of nUan and taatfuumw," Ac SuniUr viao*
•m* to twn aeni|ricd the mni of >di«tnfntJiri AnMrieaa gmlTimii. vtn p«iMia<
a pmphirt is \ns tf<Ht. WonMln);. rnHiM "Thevahta npea dv PttUifad BlwIiMi
«t tin L'ntlMt Slalai of Anwrin," te., ^ U, Ac
CD. TI.]
TUB Pfl£AUBLB.
885
will, in the mean time, dcsen-e the attention of every conitiderate
niMt in America.'
§ 515. Hitherto our ox))criencc hag dcmonfitratcd the entire
safety of tlie Statoa, under the beolgn operations of iho Conxtita-
tinn. K&ch of tb«.' 8tiitcii htis grown in power, in vigor of upora-
tion, in commaDditiK iniluoncc, in wealth, levenno, popiilalion,
commerce, ^riculttirc, and general efficiency. No niiiii will
Tenturc to afiirm, that their power, relative to thnt of the Union,
has been diminished, although our population has in the inter-
mediate period passed from three to more than twelve millions.
No man will pretend to say, that the affection for Uie State go?-
cmmonte has 1>een senaibly diminiiihed by the operations of the
general government. If the latter has bc^rome more deeply an
object of regard and reverence, of attachment an<i pride, it is
bceanse it is felt to i>o the parental guardian of our public and
private rights, and the natural ally of all the .State govpmmenta,
in the adminlBiration of justice, and the promotion of the general
prosperity. It is beloved, not for its power, but for its bencli-
oeneo; not bccauac it commuuda, but because it protects j not
because it controls, but becauau it austains the common interests,
and the common liberties, and the common riglils of the people.
§ 516. That there have been measures adopted by the general
govermnent which have not met with universal approlmtion,
must be admitted. But was not this difference of opinion to be
expected? Does it not exist In relation to the acta of the State
governments ? Must it not exist in every government, formed and
directed by human brings of difEcrent talents, characters, pas-
sions, virtues, motives, and intelligence? That some of the
ineuaurcs of the gcDL-rnl govomnicnt have been deemed usurpa-
tions by aouK' of the Htutes is also true. But it is equally true,
that those roeasum were deemed constitutional by a majority
of the Statrs, and as such received the most hearty concurrence
of the State autborities. It is also tnie Ibut some measures
irh4Me constitutionality has been doubted or denied by some
States have, at other times, upon re -ex ami nut ion, been approved
of by the same Klatea. Not a single measure has ever induced
tbr«eH]uarters of the States to adopt any amendment to tlie Con-
stitution foimded upon the notion of usuqiation.* Wherever an
> Th« r^Unilitt, tfo*. Ai. M, II.
* If lliiir* hf »tiy cmqitiott. it it the dtcUui m to th« tuaUlily «f lh« Statn. But
VOL. t. — 25
3tW
COXSTITUTrOll OP THE CNITED STATES. [BOOK III.
amendment hns titkcn |>1ace it haa bccii to clear n wni doubt, or
obnato an incoiivt>nieiion eRtablisbed \sy our cxpcHcnoc. And
tJiifl Tery power of amendment, at the comiunnd of tlie .States
tliomaelvets fonns the great balance-wheel of onr svstem, and
cnubloA ua flitontly and quietly to redress all irreg:ularitie», and
to put donn all practical oppressions. A iid wliut is not a little
remarkable in tlie liiatorjr of the govcrntnont, is that two meas-
ures, which stand confessedly t)]>oa tho extreme limitH of consti-
tutional authority, and earry the doctrine of coniitructive power
to the last verge, have been Immght forward by those who were
the opponents of lh« Constitution, or the kiioH-n advocates for its
most restricted construction. In each case, however, thoy re-
ceive*! the decided i^npftort of a Krt-at majority of all tlie Stattw of
the Union; and llio coustitutiouulity of them is now imiveisally
acquiraced in, if not universally aHirmcd. We alludo to the uii-
limitf^d em}>argt>, |>aj4sed in 1807, and Or- piircliuseand admission
of Louisiana luto tlie Union, undt^-r the treaty with Prance in
1803.1 That any act has ever been done by the general govern-
ment, which even a majority of tiw States in Ihi^ Union have
deemed a clear and gross usurpation, may be safely denied. On
the other hand, it is certain tJiat many powers p«jsitively belong*
ing to the general government have never yet bei>n put into full
operation. So that the influence of ^late opinions and State
jealousies and State policy may be clearly traced throughout the
«Teii tUt dMwvn not lb* oaatr of luarfatioD, for Uia c*m hib clcari; viUiU tbc »at<li
or lbs CiMutinitim.
> 4 )niiot'« DvUtoi. £ST. rraidmt JtKtnm bimaeU', nador wbow nlrainittnitioB
liMh lh>'M mnuure* mn [MMetl, which vcre. tn tbc bigbett maut, hi* own mfiirui,
wu ilrljIitnittJy of npLnion ihitt Ui tmendmcDl of tho COMtltntiDn wu tnfrmuy to
■uliioriM th« f^miaal gonniiiMat to Rilmil LnubUna inlo Um Paion. Ytt he nnl5«l
lh« vpry imt; wbioh •wuml lhi« right ; ind cunlinanl Uw hm ulikh jpna U dttct,
4 JcITcnra'* Carttp. 1, 3, 3. A num pntioiUar GOBahUnUuii of tbt« mbjocu wUl
naturally actia in tama tMata A\miudttia.i*)
(o) 6m> Cooke'a Coastitiiliaiul UisiOfT,
pt^ in, 2>i. Tbii antboT, alluding to
thH Mi)iuiilioii, uid to Ur. Jcflmaa'ii
oplBian npoa tb* powor t« main ft, ium
not blkd la ranatk Iht iMdlaaa et vnwf
iwrty 1b ponr to sxckIm pmur xitlior-
itj tbui thoy wtin willlnn to «oiK«k that
Iho j^sTcrntiinit (hmhimiI «1i<ii in ib«
haikl* of their Dpponmt* ; and il might
thanca t>* anpii>d that tbe ttsdeucy to a
eeoitaot acurtlton iJ bderal antbtrity wu
lu W ta}itclnL, if nM liwvhatiln. Vtiut
tbr trmiH ' ■ >'«il*r«1 " aixl " K<t«tilican "
ta tbflii otigiDal attar, u applM to Iboaa
<Kim sen nNpeeliTelr tor a libml aMl a
•tiicCMiwtTiiFlioB ol Uw powm oT pintli-
niMit. it mifiht. br rooilirpiig a Hid* Ur.
J«ir«nDii'a fuoniM Dfihorlmn. btMdil. "Ovt
of |<ow«r,wtu«allR(piiblluuii{ lupewor,
n an all roUnOliU" C.
Cfi. TI.] THE FBBAHBLB. 387
operations of the general gorcmmcnt, and especially in the ex-
ercise of the legiBlative powers. This furnishes no just ground
of complaint or accuBation. It ig right that it should be bo.
But it demonstrates that the general government has many salu-
tary checks silently at work to control its movements ; and that
experience coincides with theory in establishing that it is calcu-
lated to secure "the blessinga of liberty to ourselves and our
posterity. "
§ 517. If, upon a closer survey of all the powers given by the
Constitution, and all the guards upon their exercise, we shall
perceive still stronger inducements to fortify this conclusion,
and to increase our coniidence in the Constitution, may we not
justly hope that every honest American will concur in the dying
expression of Father Paul, " Esto perpetua, " may it be perpetual^
8S8
C0KST1TLTI0.N OF THE UnTBD BtATES. [BOOK HI.
CHAPTER VII
DI9TRIDtm0M OP P0WE8&
§ 518. Ik surveying the g«n«ral structure of the Conatittition
f4 tlte United Stutcs, wo aro naturtlly ted to on examinatioa of
UM) faQ<Iitmcnt»l priuoiplcs on wliidi it Ja ur^nizod for tJif^ pur-
posa of cnrryiug into otToct tlic ob}c«t8 discloeod in the prcumblc
Every goreminoni mu8t include within its scopo, nt least if it ]»
to poHsesB snitalilc ntaiiitity and ener^, tlic exurcixc of (he tliree
great powers ii)>on whicli all governments are atipposied to r«st,
namely, the executive, tlie legiiilative, and the judicial powers.
The manner and extent in which these powers are to bo exer-
cised, and the functionaries in whom they ai'e to be vested, <XM-
stltute the great distinctions which are known in the forms of
government. In absolute governments tlio whole executive, le-
gislativu, and judicial powem are, at least in their Una! result,
exclusively confined to a single individual; and such a form of
govcnunent is denominated a dcspotiam, as the whole sovereignty
of the sUitvs is vested in him. If the same powers are exclusively
confided to a few {wrsons, constituting a permanent sovereign
couneil, the government may be upjiroprintcly denominated an
absolute or despotic aristocracy. If they ore exercised by the
people at large in tliuir original sovereign assemblie-s, tbo gov-
ernment is a pure and nbsoluto democracy. But it is mure com-
mon to find these powers divided, and separately exercised by
independent ftmctionaries, the executive power by one depart-
ment, the legislative by another, and tbo judicial by a third ; and
in these catM>« the government is properly deemed a mixed one;
a mixed monarchy, if the executive power ia hcrt-dilary in u.
single person; a mixed aristocracy, if it is beroditar>- in several
cbieftainH or families; and a mixed d<.-mocracy or republic, if it
is delcgat'Ml by t-lcction, and is not hereditary. Li mixed mon-
archies and aristocracies some of the functionaries of the legisla-
tive and judicial powers are, or at least may bo. beroditary. But
in a reprc»entalive republic all power cmAu:tios fmm the people,
and is exercised by their choice, and never extends beyond tho
CH. m.]
DISTBIBUnON OP POWEBS.
889
lives ol the individuaU to whom it h intnutted. It may be
intnwted for *njr ghortur pcriud ; antl tlion it returns to them
lin, to 1>« agttin dclegtttod by a new choice.
§ 511). In th« ooareation wlitch framed tlio CouHtitutioa of the
Uuitod f^tAt«i«, thfl first ri-«oluliun udoptcd by thitt body vas, that
"a national governinent ought to bo establiflhcd, consiitting of a
auprfUM! Ipgialativ*^, judiciary, and executive"' And from thi«
fundamental jirojionition sprung tlio 8uli)(«()UL-nt urgnnizatioii of
the whole government of the United States. It is, then, our
duty to examine and consider the grounds on which this proposi-
tion rests, since it lies at the bottom of all our ini^titntions,
[State as veil as national.
$ 620. In the establishment of a free gnvemment, the division
of the threo great powers of government, the exeentive, the le-
gislative, and the judicial, among different functionaries, has
Lbeen a fa\-orito poliey with patriots and statesmen. It has by
'ttumj beeu docmi-d a maxim of vital importance, that thefte
powore should forever be kept separate and distinct And accord-
ingly we find it laid down with emphatic care in the bill of rights
of several of the State constitutions. In the eonstitution of Muft-
sachusetta, for example, it is declared, that " in the government
of this onmnionwcalth, the legislative department shall never
exercise the executive and judicial powers, or either of them;
the executive shall never exercise tho legislative and judicial
powers, or either of them ; the judicial shall never exorciMi tlu
legislative and executive powora, or either of them; to tho end it
may be a government of bttn and not of men."' Other dccla>
rations of u similar character arc to be found in otlicr HiaAe
eonstitutious.'
§ 621. Montesquieu seems to have been the first wbo^ with a
t JoanuUorCiHiTaittoo. $i. S3, IStl 907, SIS.
■ Bill of Btglttt. uticU 30.
■ Tho FedtlvUA. Ko. 47. It bM bten rapoikol by &It. J. Admw, tlwt the ptuti*
CaUllty or il» ituntlon ct » npatilk. In whldi then U ■ gennoT, a muU, aod ■
hoiMe of i*[>rnHBUiiTM, In dmU*d faj l^llsi, tlinii(^ h« almit* Ik* thMi; U> b*
l*i»d«bl«. CuiivU* niUoiM* M ilrlm |icqiiiliw, «ut priorai, ani MnRoIl R)(aiit. Dtkda
n bit M ooDfliluta tvipnblia* toimt Hnitai hdliua ijuaiii tnmtir^ *«l »i imDlt, haui
dJntoiM oae poMA. T*idt. Am. bb^ 14. CkMVunrt*, "Sutiio wMOiXiiiiecoMtl-
lataa ntnpnMioun, <iiia ei tilbaa gtstribna UU^ regiJi, opttmok et p^fnkri, modin
OonftiB.*' Cie. Fra(. lU Itt^uh. I Aiikiii* * Amer. Conclltusianc, Pnbot, 19. Th«
Britlib fovMnntrat )i«^ip« uiawan motv luuly to ibe term of Rowmment prapoMd
If tlMM wriUr^ Uuw vhaX «• U BW-kn limM duMU Mtam arittij a npnbUe.
CONBTlTtTTION OP THE UNITED STATES. [BOOK 111.
truly phi loaophical eye, BUiTey<?d tlie political truth involved in
th)8 maxim in ita full ext«nl, and gav« to it A pnrumuunt im-
portauco and value. As it is tacitly aHSumixl, as a fundiuiicatal
bo^ifl in the Conittitution of tlic United States, iu the diBtrihutioa
(rf it« powers, it may be worth inquiry, what is the tnie uaturu,
object^ and extent of tbo maxim, and of the reasoning by whieh
it is supported. The remarkB of lifnnteftquieu on this subject
will bo found in a professed commentary upon the constitution
of England.' "When,'* says he, "the legislative and executive
powers are united in the same person, or in the same body of
magistrates, there can lie no liberty, because apprehensions may
arise leat the name monarch or senate should enact tyrannical
laws, or execute them in a tyrannical manner. Again, there la
no liberty, if the judiciary power be not separated fmm the le-
gislative and executive. Were it joined with the legislative, the
life and liberty of the subject would be exposed to arbitrary con-
trol; for the judge would bo the legislator. Were it joined to
the executive power, the judge might behave with riolence and
opprestiion. There would be un cud of everything were the same
man, or the same body, whether of th« iiubles or of the people,
'to exorcise these three powers, that of enacting laws, that of
executing tho jiubtic rcsolutioii«, aud of trying the causes of
individuals."'
§ 522. The same rcasoiiiog is adopted by Mr. Justice Black-
stone, in Ilia Comiuvutarie».' "In all tyrannical go^'emments,"
says he, "the supreme magistracy, or tho right both of making
and of enforcing luws. is vested in tlic aamc man, or one and the
same body of men; and wherever tlicso two powers are united
.together, there can be no public liberty. The mu^iiHtrate may
E«nact tyniunical lavs, and execute them in a tyraunieal manner,
since he is pwutes.'MKl, in quality of disficnser of justice, with all
tthe power whioh he a^ legislator tliinks pi-ojKrr to give himself.
^But where the legislative and executive authority are in distinct
> UMtMquUu. a tl. ch. fl.
* H. Tut;^ inn tlin following ttrong Unjia^ : " Ttii> trntinr of Iha |)ra|il* U llit
IsMt cracl noil iQtolonbk, IxwaiiM it lam tlie fcvM ntnunta to Un upprCBj. A
dnpot i* mtnlnnl bfa Kime «f hu tnm tntcrat He ii «tieclEc<t by maoavc w pnUie
opioiai. But tWmiiIUt>iit«MTweikal«tA; lb« mnMtude tn nenr rJin:k*il bj n-
mosw. Mid will ctuii Mctflw to tlwotMlf n Uu bl^iait luMrr wImd Uiay il«M<m only
dHfintat.* Letter to Dr. Priet.
* 1 lUwk. Comin. IM.
CU. VIl.j
DISTBIBCTION OP POWERS.
bunds, the formi>r will take care not to intnii^t the latter with
80 laxftfi a [lower oa niay t«niJ to tli« subventinn of ita own intle-
pcuiloiicc, and thcrowith nf the lilwrtj- of the sulijwf," Aj^ain:
*^Iii thi» dieliuct aud separate existence of the judicial power in
a peciiliur body of men, nominated, indeed, by, but not roraova-
lilo at, till- plcuHuro of the cniwn, consials one main pn^wrviitiTO
of tlie public liberty; which cannot long aubitist in any xtuie,
unices tlic udminiatration of common justice lie in some dcprM
eejuirated from the legislative and also tliv cxceutive power.
Were it joined with the le^alative, the life, liberty, and pro|>-
erty of the subject would be in tli« bandu of arbitrary judges,
whose dcct)(iuN« would then be rej^dated only by tbcir opiniuiiK,
and not by any fundumentui principles of luw; wliioh. tliooiili
legislators may depart frum, yet judjies are twund to olwene.
Were it joined with the executive, this union might soon bo on
orerbslance for tJie legislative. " •
> 1 BlKk. Comm. 2d». 8m 1 Wtbon'* Uw LMtttio. t»K 399. (00, M. 408, iM i
VoodcMii'* Elflia. of Jnricp. £3, M. The Ttmatk* of Dr. Vmhy, <m Ihn aiaw nilijecl,
•n All] cl hli imul fFTRRlinl ntiia*. " Tha Gnt niAxln,~ mj* be, "of > tna »M» li,
that lb« Uw> bn m»i« hy one tot of m«n «iid «ilininiit«T4<l l>y uiotlwr ; in otli»rii«vdik
that the IcgidaliTo mai JniliruJ diaracten ba kept wpvmtv. Whmi ikn oflcai u« i
niiited in tb* «ina pwaen araiMMiibljr, particnUr law> aro tnaile lor pnttUuUr camm, \
■p4ugbi| often tinm fnim iiutinl niativni,ani)<llnttodla [wivaUcmliL Whllat tlir^
u« krpl wp«ral«, wueral linrn mn Rmrle \>j oD« body of men, williont fomivinx mliuB
they may alTect : and when tnadcv tbty mart be applied by titt oChtT, lei tbcm aSrvt |
■liom tboy wilL
"For the Mike of HlMtntloD 1»I tobf mppoMil, la tlibconDtir, •ithur that, Parlia*
mcnta hting laiil uUti. tb« OMrtt of Wealinlntter Hall mad* their own lam ; or, that
Ihc (WO baiUM of Parliamviil, irith the king nt tlieir linil. trifd and 4iicUed onuM at '
llirir bar. It l« »rid«nl, in the fint |ila», that the ilecUmn at auch a jBdicatnni would
ba to Many law* ; and, in the aecoad plan, tlial. wWa the putim and Ih* tal>n«U lo
beafltctnlbylbeltin wMekao«n, tlietMliaatioDiof tbciaw-niaktn would inevilaUy
■ttatb OM one ibk or tho otbcc ; and tliat wbm there wtn neither any lixcii mle* to'
Kfukl* llieir delmninallam, bar any auiwHnr power looestmlthdrpr»o*oliag*,tbf>»
bcltnation would inlerfrre with Uie iotrsnty of |<ul>lk JiiMk*. Tb* tOttaaqMKa <4 ]
■rhkh matt be, tbit the laluMta of nick a «anatit«tioa w««hl llt« aither wlthoal aay
BOBitiiil Uw«, t)ial ii without any known pi» ealaUiahoJ raJca ot ■4)a<licatMn what*
ct*r ; or nirivt U<n> Mada for particular pfrmn, and putakiog of the «antndictiaa*
■ml iniquity of tbe mollvM t» whidi they rnrarl tbrir erictn.
"ThiBw ilai^n, by lb« ditidon oftbe kf^hilive «n>l judrdal functions "* in Ihle
eonntry «Actnally ptoviied i^aaL PurtiMiiDOl knowi not the imiiriiiiul* n]>iin
wbom It* aela will oficrate ; It ha* no eiaca at putlea befon it i no prrrsi* dad|pu t«
MtTo ; (oatniunntly It* raaotntUnt wfll bn aaiQtMtad by th* cnniidantlnn at anivenal
ellerts and Icnden-'iea. wbicli alwiyt prndorv iiapartlat and oonimonly adrantaffeou*
legolaliou. VTbto laws ■» made, courta <i< jwtteCk whatnrr be tlia dbpinition of iIm
judgo^ mnU ftbidc by tlmn : for tli« IcgidatirabMOgMoauarUytlMauprrBe pnTcrof
898
COXSTITOTION OK THB OKITBD flTATEfl. [bOOE HI.
§ 523. And the Federalist baa with equal point and brevity
romarked, that "the accumulatiun of all powers, le^slative, ex-
ecutive, and ju<I)ciary, in thu same banda, whether of one, a few,
(HT manr, and whether hereditary, self-appointed, or electire,
may be justly pronounced the v<:r}' definition of tyranny." '
§ 524. The Reueral rcasuutug by nhicb the maxim is sup-
ported, independently of the jusl weiglit of the authority in its
favor, seems entirely satisfactory. What is of far more value
than any more rcasonio!;, experience baa demonstrated it to be
founded in a just view of the naluru of guvcrumcut, and the
safety and liberty of th« people. And It is no small commenda-
tion of the Constilulion of the Unit«d Stat««, that iiiKt«ad of
adopting a new theory, it has placed this practical trutli as tJio
basis of its orj^nization. It has placed the Ifiipslativo, execu-
tive, and judicial ]H>wcrg in different hands. It has, as we stuiU
th« ■tat'. Urn Jndii-iH) and ertrj olhec power 1* ueotuiUblo to that ; kiul ft tantMt b*
' douli(«<l ihti Uie iwBuna wbo fvmmt tbs MVw*I)[n ■iiUioiiiy of goTcramaiit >iU b*
\ UmeiQVB it the bm vU«h t)i«y UipmulTM fOMcKbt, and •uflScUnlly jtsloua vt ttM
UMtrnption «f diiptiuiitg judicUlaad U^cialatire power bf any oUiera." ihJ«j'*Monl
l^htlowph)-, B. «. ch. S.
■ Th* F<il(Ta}lM, Xo. 47 ; Id. Ko. 22. Soa «ln Oov. n*ndo1|>h> Lttter, t QUofs
I'mb. ISS 1 WooilMOD'a Elmi. of Juru|i. O, S4. Mr. Jcl&noa, xa tii NoM on Tlt-
Iginia (Jclfcnoit'i Notm, fi. lUi), bu nprcuid the ttme tratb wilb peculiar farror and
i fbtML Spaikicgof tboconatitution of goTernment ofhia oirn States bt taya, " All tba
Kjwwan of fiiTariinwDt, l^[ialatiTa, encattva^ a»d JndUlaiy, icanlt lo tb* Icgitlatira
Ibodjr. The oanotutmUiig tfa«a« In iba aama haada ia fnoiaalj the ik&nition of a
1 dMpotia g»nnniant> ll will be no alkriaticm (hot Uimm poven will be cxercMd bf a
I ptormll^ <d haada, and not by a nn^ on*. Ono bundled and acranlj-thrat deapota
[ would u)Tf ly b« n opprmaiTa aa one. Let thaw who doubt It tani thait cfia oa tba
' npaUie or Venice. An eleetlva daapotlani U not lb* gDvernaienl m fought Ua \ bat
ono which ibould Dot 00I7 be foumled on free paindplea, bot ia wUah iba powtra of
govcniincot aha«hi be m divided and balaooed among acreial bodlaa of ina([l«traey, aa
■that na ona oonld tranaeaod ihair Itgal liuita without bdag affrclually iJiwk«il and re
[■ttalned fcy the aOaen." Y*t Vli^nla llrad roIiuitaKly DOilcr tbia oooiUtutiaa mote
than Urty ytm (aee 2 Fitlua'a Hilt. SM, SM, SIM): anil. M>twitliata»dinB tbia aoaama
warning bjr fan own faToril««UI«aa»Mi. in the neent terinon <f bar old cosatlnnloa
and tlie fonnatieoi of a new o«a, aho baa not in tbia naprct ehaaged Uie pe«et« of ilia
goTenunmL Tba lq[labtun ■till nanalM wlib all Ita jeraat poweia.
No panon. boHeTer, baa eaamliiMi ihia whoW aubjert more ptofcondly and with moi*
IllMtiatiana ftoan hialory and pulilical philoaophr, thaa Mr. John Adona, in hia ede-
braiad Dafanoa of tbe Amerioan ConalitatioM. b ilaaarrai • thorw^ poniaal ^rf
Vttrf MaleamaB.
UtltoD waa aa open advocate for eoneaatnitlnjt all powera, lo^iakUie and eMentl**,
lOBabody: abd hi) opisioM, a> vnill aa iboa* of aonaa othar man of a [diDoaopbiml
, an anttdeatly wild wad ntravicaBt lo pat ua npon our gvaid a^unat toe nuch
r on man aatknltj, 8te1 Adinu'a Dtf. of Aacr. ConaL 3U to 271.
CB. TO.]
DISTRIBimoK OP POWraS.
8d8
entl}- see, made tLeir term of oflico sad their on^izaticm
diffen-ut; and, for objects of pcrinaticQt and juiraniiHiut impur-
toncc, has given to the judicial depart mt-iil a ti^iiurc of office dur-
itig good lichavior, while it has limited each of Uie others to a
term of jreara.
§ 62.>. But when we npeak of a reparation of the three great
departments of government, and maintain that that sojiaration
is indispensable to public libertjr, wo are to understand this
k maxim in a limited sonae. It is not meant to affirm that they
must he kept wholly and entirely separate and distinct, and hare
no conimnn link of connection or dci>cndence, the one upon ttie
other, in the slightest degree. The true meaning in, that the
whole power of one of these departments idioutd not be exercised
by the same hands whicli pussese the whole power of either of
the other departments ; and that such exercise of the whole would
subvert the principles of a free cunstitutiun. Thin has been
shown with great eleuniosA and accuracy by the authors of the
Fedcralisti It was obviously the view taken of the subject by
Houtct<quicu and Blackstono iu their comuicnturies; fur they
were each speaking with approbation ot a constitution of govern-
ment, which embraced this dirisioa of powers in a geoeral view;
but which, at the same time, established an occasional mixturo
of each with the others, and a mutual dcpoudenoy of each ujKm
I the others. The slightest examination of the British constitution
vill at once couviuoc us that the legislative, cxceutiro, and
judiciat}* departments arc by no means totally distinct and scpa*
rate from eai^h other. The executive magistrate (onus an into-
I ^1 part of the legislature department ; for Parliament consists
iof the kiiig^ lords, and commons ; and no law can be passed ex*
LMptby the assent irf the king. Indeed, he possesses certain prc-
'rogatires, such as, for instance, that of making foreign treaties,
by which he can, to a limited extent, impart to them a legisla-
tive force and 0]>eration. He also posaeasca the sole appointing
^'power to the judicial department, though the judges, when once
appointed, are not subject to his will, or power of remo\-al. The
House of Lords also constitutes not only a vital and indejiendcnt
branch of tlic Icgislatore, but is also a great constitutional coun-
cil of the executive magistrate, and is, in the last resort, Iho
highest appellate judicial tribunal. Again, the other branch of
> Tlie Fedtcaliit, So. i%
891
COXSTITITION OF THE DMTKD BTATIS. [uOOK IK.
tbo lfigi$tat»re, the Comnioiui, pofuesR, iu some sort, a portion
of tlie executive and judicial power, in exerciairiK the ]>uver of
acousntion by impeachment; and in this cusv, aa ulsu iii the trial
of pecnt, the House of Lurd^ »H» ax a grand cuurt of triaU for
public offences. The power* of llio judiciary department are,
indeed, more narrowly eonfined U> llicir own projH>r sphtire. Yet
Hiill the judgea oceaaiunnll}' aasiHt in the deiibeniiiuna of the
Iloune of Lords by giviu); their optniuiiB upon matters of law re-
ferred to them for advice; and IhuA they may, in some aorl, be
deemed assossora to the lords in their legi»Iativc, as well m
judicial wipacity.'
§ 526. Mr. Justice BlacEcstonc has iUuutrated the advautogcs
of an oceasiunal mixture of the le^nslative and executive func-
tions in the English eunHtitution iu a stnkiug manner. "It is
highly nceesaary," saya he, *'for prraerving the balniioo of tho
const itutiun, that the executive )>ower should lie a branch, thou^
not thi; wliule of iho li-gislutive. The total union of tlicm, vo
have eecn, would be productive of tyraimy. The total disjunc-
tion of tboni, for the jiroseiit, would, in (he end, priHluoe tlie same
cffecia by causing that union, against winch it s<^'enis to provide.
The legislative would soon become tyrannical by making contia-
ual encroaehnif-nts, and gradually assuming to itstdf the rights
of the executive power, Ac. To hinder, therefore, any such cn-
croachmenla, the king ia, himself, a part of the Parliajnent ;
and, ag this is tho rpaaon of his being so^ very properly, therefore,
the share of legislation which the constitution huK placed in Ute
crown consists in the power of rfjtetinff, rather (lian remhinff ;
this being sufficient to answer the end proposed. For wo may
apply to (be royal negative, in ttiis instance, what Cicero olMcrves
of the negative of tho Roman tribunes, that the crown baa not
ony power of doing wrong, but merely of preventing wrong from
being done. The crou-n cannot begin of itself any alterations in
the present estnblislied law; but it may approve or disapprove of
tlie alterations suggei«ted and consented to by tho two houses."*
§ 527. Xotwitlistanding the memorable terms in which this
maxim of a division of powers is incor|)orati.-d into thn bills uf
rights of many of our State constitations, the same mixture will
bo found provided for, and indoc^l required in the aamc aolemn
■ Th* FedonlUt, ITo- «7 1 Da Lolnt «a tl>t EngUali CeaOhotkiin, B. 3, elk 3.
* 1 Bhell. Cmbid. IM.
CH. vn.]
DISTMBimOX OP POWBUl
895
InBtninicuts of govcriiiDc-nf. Tlitw, fhc ^T^mnr nf Ifassachu-
Hctiti exercises A pttrt of lliv k-gmlatirc power, potuicHtiing n qtiuti-
fied negative upon all laws. Tbc house of rcprcsentatireA is a
gTBiti] inqiicHi for arrtmntioti ; and lb« m-iiatt- is a high court for
the trial of iiitiM>achnieiilH. Thu guveriiur, with the advice of the
executive council, possesses the power of appaintmont in general;
hut th« appointment of certain ofFicen* still belooj^ to the Senate
and {louse of Kepreiwntative«. On the otht-r hand, altliuup:b the
judicial department is distinct from the executive and lo^slative
in manv rrapects, either hrauch nmv rwjuirc tim advict> of Ihe
jud^>a, iip<m solemn questions of law referrw! to tliem. The
Bomo general divinion, with the same occasional mixture, laaj be
found in tlic constitutions of other States. And in some of them
the deviations from the strict theorj- are quite rcmariablc.
Thus, until the late rcviition, the constitution of New Vork con-
stituted the governor, Ihe chancellor, and the jud^res of the Su-
preme Court, or any two of them with the governor, a council of
revision, which possessed a qualified negative ii|H)n all laws passed
b; the Senate and Houscof Representntives. And, now, thecJian-
cellor and Ihe ju<lu«s of the Supreme Court of that State con-
stitute, with the iN.'oiite, n court of im|ieaelimcut, and for the
correction of crrom. In New Jcncy Ihe governor is appointed
bjr the k-pisUture, and is the chancellor and ordinary, or surro-
gate, a memlxT of the Supreme Court of appeals, and president,
with a costii^ rote, of one of the branches of the legislature.
In Virginia the great mas* of the ap)>ointing power is vested in
the legislature. Indeed, there is not a single constitution of any
Slate in the Cnion, which docs not practically embrace sonie
acknowledKinent of the maxim, and at the same time some ad-
mixtuiv of powers constituting an exception to it.' (/i)
§ 528. It would not, perhaps, be thought important to hare
dwelt on U)is subject, if originally it had not l)een made a s[mv
eial ol>jection to the Constitution of the United States, that
though) it professed to be founded upon a division of the legisla-
tive, executive, and judicial departments, yet it was really
chargeable witJi a departure from the doctrine by accumulating
in some instances the different powers in the same hands, and
■ The PedmJiit, Hon. «T, 18.
^) Uttij of t^M* thinp •» now etbcf«iM
COSSTITDTION OP TRB DKtTED STATES. [BOOK ni.
br » mixture of them in others; bo that it, in effect, subverted
the maxim, and could not but be dangerous to the public liberty.*
The fact must be admitted, that such an occasional accumulation
and mixture exint; but the conclunion, that the (tystcm is there-
fore dangero&H to tlie public libertT, is wholly ioadmUsiblo. If
the objection were well founded, it would a{>ply with iMjual, nod
in some cases with far greater, force to moat uf our State coiuttj-
tutiuns; and thus the people would be proved tbctr own worst
ciicmieis by embodying in their own eouatitutions the means of
overthrowing their liberties.
§ 529. lite Kutliors uf the Federalist thought (his Mubjcct a
'matter of vaot importanco, and accordingly bestowed u}>on it a
jmost elaborule cummontury. At the present tiino the objection
may not \xi foil r» posticssing much practical force, since experi-
ence has demomtlratcd the fallacy of the Buggmtions on which it
vaa founded. But, as the objection may be revived, and as a per-
fect separation is occasionally found supported by the c^iniona
of ingenious minds, daizled by theory', and extravagantly attached
to the notion ni simplicity in government, it may not be without
use to recur to some of the reasoning by which those illustrioua
1 statesmen who formed the Constitution, while they admitted the
general ti'uth of the maxim, endeavored to prove that a rigid
adherence to it in all cases would be subversive of the elBciency
of tlie government, and result in the destruction of the public
liliertiea Tlio proposition which they ondortook to maintain
was this, that " unless thene departments be so far connected and
blended as (o give to each a const itiitiunul control over the
others, tho degree of separation which the maxim requires, as
essential to a free govcnuncnt^ con never in practice bo duly
maintained,"*
§ SSO. It is proper to premise, tliat it is agreed on all sides
that (he {luwors bulonging tu one department ought not to he
directly and cuiiiplotely administered by eiUier of the other de-
partments; and, as a corollary, tliol, in rcfervnoc to each other,
neither of them onsht to jHift^etts, directly or iiidinvtly, au owr-
ruling inHuenco in ttte administration of their rt^fi^etire pow-
ers.^ Power, however, is of an encroaching natorc^ and it ought
to be effoctuolly restrained from passing the limits assigned to
> 1 Amer. Jiiuruni, £30, Ut, 030 ; Id. S5S j 3 Anttr. Uoanm, 78, 7*.
* Tin Fnlonlitt, Ko. 48. • U.
CH. VII.]
DignuBonoN OP poweu.
897
it HariDg separated the tlirco grcut departments hj a brood
line front each othvr, tho difficult task remains to provide some
practical ntcons for lite security of each against the meditated or
ocoasional invasions of the others. Is it siiHicient to declare on
parduncut in tJic Constitution, tliat each idiull remain, and
neither shall usurp tbc functiuiia of the other? No one, well
read in history in frcaeral, or cren in our own histor>- during the
period of the exi)*Ioncc of our State constitutions, will plucc much
reliance on such declarations. In tbc first place, uieu may and
will dilTiir Hit to the nature and extent of the proliihitioiL Their
wishe-t and their interests, the preralence of faction, an apparent
necessity, or a predominant popularity, will givo a atrong bios
to lh<?ir ju<)gTnenlit, and easily sa^jsfy thent with reasoninti which
has but a plausible coloring. And it has been accordingly found,
that the theory has bent under the occaaional pressure, as well
as under the occasional elasticity of public opinion, nnd aa well
in the States, as in the general government under tho confcdera'
tion. UsurpaticHts of power have been notoriously assumed by
particular dcpartmcntB in each ; and it has often hap|)cncd that
these very usuqtations have received popular (avur and in-
dulgence. '
§ 631. In the next place, in order to prosorvo in full vi)^r the
constj)ntional barrier between each department, whou tlii'y are
3\j separated, it is obviously indispemuible that each should
equally, and in the same deforce, the means of self-pro-
tection. Xow, in ]N>int of theory, this would bo almost imprac*
'tioabte, if not impossible; and in point of fact, it is well known
that the means of self-protection in the different departments
are imineasiirably dinprojxjrtionate. The judiciary is incompar-
ably the wcuk(^-»l of either, and must forever, in a considerable
measure, be subjected to Uie legislative power. And the latter
has, and must linve, n controlling influence over the executive
I>ower, since it linlila at its own command all the retwurwa by
which a chief magistrate could make himsolf formidable. It
possesses thy power over the punw of the nation und the property
of the people. It can grant or withhold supplies ; it can levy or
withdraw tuxes ; it can unnerve the power of the sword by strik*
ing down the arm which wields it.
§ 532. Do Lolntc has said with great emphosis : ** It is, with<
> TU Ftdtnlbt, Ko. 4a. BMakaTlMP<>i<nlul,K«i.SS,tS.
898
COKSTITUTIOK OP THK UKtTEO STATES. [BOOK nl.
out dotibt, ahfiolutely necesfiar; for securing the cmuttittition of a
state, to reHtrain the osccutive power; but it in atill more neces-
sary to rratraiu the leirislative. What the fornnT can onljrdo by
successive BtcjM (1 ini'SD, Buhvt^rt tJic kus), aiid through u longer
or a uhorttr train of cutorpriseg, the latter doea in a moment
As its bare will can fpvv bciu^ to thi.' taws, so its bare will can
also Aiinihilutu tbvm; and if 1 may bo permitted the cxpri'xsioit,
the legislative power can ehangc the eonstitution, as God created
the light * Li order, therefore, to insure stability to the consti-
tution of a state, it is indispensably neci:8san>* to n^train the
le^slativc authority. But, hero, wo must obsen'o a diffcrenoo
between Uic legislative and executive power*. The latter may
I>e confined, and is even more^ easily so, when undivided. TTio
legialative^ on the contrary, in oi'der to ita being re»Crniued,
should absolutely be divided."*
§ 58S. The truth is, that the legislative power is the great
and overruling power in every free government. It has been
remarked with equal force and sagacity, that tlie legislative
power is everj-where extending the sphprfi of its activity, and
drawing all jwwer into its impetuous vortes. Tbe founders of
our republics, wise as they were, under tJio influence and the
dread of the royal prerogative, which was prrs-ting upon them,
never for a moment seem to have turned tlieir eyes from the im-
mediate danger to lilK-rty from that source, combined as it was
with an h<.TL>dilary authority and an herclitury )>oeruge to s»p>
port it. They si-ciu never to have recullcct^-d the danger from
legislative usur^^ation, which, by ultimati-ly assembling all power
in the same hands, must lead to the same lyninny as is threat-
cued by executive usurpations. The repivseutatires of tlu) people
will watch witli jealousy every encroachment of Uie cxcoutive
magistrate, for it tR'uchcs utK>n tlieir own authority. Kut wbo
shall watch tlie encroochment of these repre>ienlaliveB them-
selves? Will they be ns jealous of the exercise of power by
themselves as by others? In a representative republic, where
tbe executive magistracy is carefully liniilixl, Ifoth in tlio ctteat
and duration of its power; and where the legislative |>owcr is
escrcisud by an assembly, which is inspired by a supposed in-
fluence over the people, with an intrepid conlidenee in its own
struugtli, — which is sulViriently numerous to feel all the pas*
> D« LoIum, B. 3, cb. S.
CH. VII.]
DISTRimrTIOK OP P0WEB8.
Bions whioh actuate tho oiultitiide, jct not. so nnin«roii« as to
be incapablf! of {mniuing tho objects of it^ [uissioiis by monns
which reason preRcrilx^ii, — It iti ca«y to see that tlio tondencp to
the uHurpotion of power ia, if not constant, at least proliablo;
an<] that it is against the ontcr]>rif)inR ambition of thia d<!partr
mvnt tliut tho pcoplo may vol] indulge all their jculooay, and
cxhKusl aVl thfir precautions. ' (a)
§ 534. Tlwrc arc many rcaaona which may bo afisificncd for the
flugrotwing influence of the le^lativo department. In the finit
pluot-, ila ooQcititutional pDwerii am more extensive, and leas
capable of beini; brought within precise limits, (han those of
cither of thu other departmcnla. The bounds of tho executive
nnthortty arc easily marked out and deriued. It reaches few
obj<.-cts, and those are kuowu. It cumiot transcend them with-
out being brought in contact with the other departuicuts. Laws
may choi-k and restrain and Iwiind its exercise. T)h^ same re-
marks apply with still greater force to the judiciury. The juris-
diction is, or may be, bounded to a f«w ohjeota or persons; or,
however general and iinlimit<>d, it« oprntions ai-c necca»arily
confined to tlie mere administration of private and public jus-
tice. It cannot punish without law. It cannot create contro-
versies to aet upon. It can decide only upon rights and cases,
as Ihcy are bronglit by otiK'rs before it. It can do nothing for
Itself. It must do cverytliing for others. It must obey the laws;
iuhI if it corruptly administers thcni, it Is subjected (o tlic power
of inipeavhmenl. "^^On the other hand, the legislative power,
except iu the few cases of const itutioual prohibition, is tui-
t The >\dmt»l, No*. tS, 4».
(ft) Ut. Gcnmrncnr Hortu oapwii
thi* rtrjr Rianxly ; ■■ What doni it ]tlg-
biff llial iiinii i&onM Inn ■ writUn con-
fldatioB oonUiaiBg iuMi|nfr(Ksl |in>Ti*-
iom awl limiutMout Tlie IcgUlUin
Uon will not Iw ciiUniilod In llio atolita
of • lo^l Ml. TbB l»KJ]iUliira will
•Ivrays innko lb* potrar obicti it alibo
to rxcirite, vnl« it 1k M of^uiutd u la
M«t«iii witlitn itMlf tbtnflldMit tbwk.
Atttmpi* to rntlralB it front «iit(^[e liy
otbtr nxaiw will nnlir rvii-Wr It pmii* out-
ngMua. Th« Mm «f ltiiiU«g lcip>ki«n
bjr oath* b punila. IlaTiiig •vom to a-
tnia* tlie ]ioiren gnatol ■oconliiig to
tbtir tnw intoii asd ■caning, tbaj wQl,
whan ibty fc*! • dodn l» ga Aiitbcr, avdil
tba ^buue, if nM tbB i[ni1t, oT fninrf bf
•VMtiag lb* lr«* tniaiit inJ nMsning ta
btV Moording l« their coropwheMtcii, that
viich nlUtheit parpem." lib, ^, bj
SpaHu. Vol. 111. p. SS3. And agabi:
" fnlwfa auT axptrimee aiU ■altteienOT'
pf«*«, witliOMt nawning on the nitiicct,
\bU f^JfT roniUIutlana at* iDjr«>l bat
oolimb cholni Iu lit* ttrong arm cf l«gi»
btion." Id. 3S1.
4A0
or m uvrm iTAmt. [book m.
Ilmllml. Il U ftiffvnr vnryinff Its nwuu ud It* ends. It por-
Nrna itH* IfMlllutliKM nnrl Inwii «ti4 public poHrjr of the countrj.
Il r<>irMlnl'<>) (iM ))■ viial ItilxnMbi. U diiipniicii nf all it« property.
IrtHili liiil Hi Mix (iirntUft (■( two or tliivtr lmnohr« nt iU ortlinar^r
|Miwiira. Il IpvIm hII Uiicii ; ft dlrrflta luid n|i|irri)triate8 all 8Up-
|ill<4| Il Nivttt III" nil«H f>>r t)i'> dfiiccnt, diiitribiitjon, and
nt nil |tri(|H>t<i lii'lit liy loiHviilaala. It imutml<i the Anurce» aad''
IIh- ii<«iiiiriH« III wi'atlk It chnnjnm st itii will the whole fabric
lit Hie l«««< Il iimoliU at lla pli-aiiiim aliiinat nil tlio institutit
wlilvlt ||lvi> Hlri'iiitUi mill oomfort ntid diKnitr to noriety.
I AHA. "lit lli» \\v\X, \\\M'i\ a U thi' din^'t, risible reprcaeat^-
Mw tit Iho will **t tht> pp»pli> iu all thi^ oltaitKCA of timt^ and cir^
I'm ! I 4. 1( liDN tho [irido u wi'll IU thp powor of ntunben.'
|i 1 iu»vihI and BtNidily ninvcd by the strunt; impuUaM
|Hi|Mil«r Im^lluit nud |w>)iular «<d>uni. It otwra, vithout ivlvct-
iUH«t Mm> «ialM« utd Uw wiU of the mtjfxitj for the ttna
IV |wili ttt iMilttle twnt llw ofHtt bf Mch dbtHtmBtt
ftitafa Mv4 twiy «ut*h"^' ^' tmpttnllT, in vbatenr
MMiwHtjr nl«lH«i «**« Ihoiick ttigr
lM«k tl tw wv MMttn^ AwwlHrm. ta b*
tot tl» wt« ))■» u| pttwwri tani ll l&a>b its aa^ttua
M% t^m* <riww» ••« Mi aibmm tha» «C
MA ^ wAiiiMll Ilk «)t»
|«lft. W^fta^i^ <&!«.<«
»■•■')
CH. ni.)
DBTBIBUnOK OF POWERS.
401
exigency ? It has boen saggcsted that on oppon) to tbo people,
at etat«(l times, might rodrcss on)- incoiivcnicncc of this sort
But, if tliosa bo frequent, it will have u Icndeacy to Iceson that
respect for, and cooGdcuoc in, the stubilitr of our institutions,
which is so essential to their salutary influoQCC. H it bo true
that all governments rest on opinion, it is no k-ss true that the
strength of opinion in each iudividual, and itit pruclical influence
on his cnnduet, depend much upon the numlicr u-hich he supposes
to have entortained the same opinion.' There is, too, no small
danger in dintiirbing the public tranquillity by a frequent recur-
rence to qncations respecting the fundamental principle« of gov-
ernment.' Whoever has been present in any assembly oonTcncd
for su(!h a purptwae, must have perceived the great diversities of
u]>iniun ujkh) the mast vital questions, and the e-vtremc difTiculty
in bringing a majority to concur tn the long^ightod wisdom of
tlie soundt.<st prorisiotia. Temporary feelings and excitements,
popular pn.-judici>fi, an ardent love of theory, an enthusiastic
temperament, inexperience, and ignoranee, as well as precon-
ceived opinions, operate wonderfully to blind Ihp ju<l(nnent and
seduce the uuderstunding. It will probably bo found in tlie bis-
tory of most conventions of this sort, that the Itest and soundest
parta of the constitution, those which give it permanent value as
well BS safe and steady operation, are precisely those which have
enjoyed the least of the public favor at the moment, or were least
eatimatod by the framers. A lucky hit, or a strong ftgurr, has
not imfrequently overturned the best-reasoned plan. Thus, Dr.
Franklin's remark, that a legislature with two branches was a
wagon drawn by a horse before and a horse behind, in opposite
directions, is understood to bare been decisira in inducing Penn-
sylvania in her original constitution to invest all the legislative
power in a single body.' In her present constitution, that error
has been foi-tunatcly corrected. It is not believed that the
clause in the constitution of Vermont providing for a septennial
coancil of censors to inquire into tJte infractions of her constitu-
tion during the last septenary,and to recommend suitsble meas-
ures to the legislature, and to cull, if they see fit, a convention
to amend the constitution, has been of any practical advantage
in that ^tat« in securing it against legislative or other usorpA-
1 Tlw FnUnliU, No. 48. • Id. Noi. 1$, M.
* I AiUni** Anwricui CnnttitDllOM, IOC, IDS.
vol- 1.— ac
402
OONSTITtmOS OF THE ONITED STATES. [BOOK HI.
tions, beyond the security pogsewed by other States having no
wich provision.* (a)
§ 5S8. On tho other hand, if nn appeal to the people, or to a
convention, is to be made only at great distance!) of time, it will
afford no redress for the most preaeing miiichiefs. And if the
mmuturca which ai-e supposed to he infraotions of the conHtitntion
titjoy popular favor, or combine extenaive private intcresta, or
have talcen root in the habit of the government, it is obviooa
that the chanoes of any effectnal redress will he ettaentially
diminislied.*
§ nHQ. But a more conchiaive objection is, that the decisions
npon all such apprala would not answer the purpose of maintain-
ing or reatoring the conatittitional equilibrium of the gorenunent.
The remarks of the Federal iat on this aubjcct are «0 striking,
that they scarcely admit of abridgment without impairing thoir
foroe: "We have seen that the tendency of republican govern-
ments is to aggrandizement of the legislature at tJic expt-nso of
the other departments. The appeals to the people, therefor^"
would usually be made by tlie executive and judiciary depart
ments. But whetlier made by one aide or the other, would each
Bid« enjoy eijual udv&utagi'S on the trial f Let lis view their
difFervnt situutions. The mcmbeni of the oxccuti\'e and judici-
ary departments are few in number, and can be personally known
to a small part only of the people, The latter, by the mode vi
their appointment, as well as by the nature and permanency of
it, arc too fur removed from the people to share much in their
prepoMKMioiis. The former are generally objects of jealousy;
and their administration is always liable to be discolored and
rendered unjiopular. I'ho members of the legislative depart-
ment, on the otlier hand, are numerous. They aro distributed
and dwell among the people at large. Their connections of
blood, of friendeliip, and of acquaintance embrace a great pro-
portion of the most influential part of the society. The nature
of tlieir public trust implies a perstmal weight with the peo-
I Tha iMarj ot llw fonatf conctltutiDa tt PraBtylvaiuK, and tlie report of Ita
fouiidl of e«nMn^ iliow tbe little nliM o( prvrfiioM ot tbu ton in • Mnng Itgtit.
Th( r«iknUM. Not. A9. SO.
* The PtikmUtf, No. M.
(a) Ttic oonBdl of oMun «u abot-
iibeil in Vtnnont ia 1670, hy ■ coiwtitti-
lioMl iBiwilniwit pcopaied by tha coimaU
tadt
CH. nt.]
DISTBlDimOH OP POWERS.
408
pie, tnd that they ara more inunediatelf the confidential i^ardi-
ant4 of their rights aju) Ubertioa. With tb«8« advanta^a, it can
lly be supposed that tho adrcrse party would bare an eijunl
''ohanoe for a favorable tiwuc. Bnt the legislative party wriuld
not only be able to plead their caae moet succeiiafully with the
people; they would probably be ooDstitnted tberoselTeH the
jndgea. The same influence which had ^ined them an election
'into the lo^slature would gain thorn a seat in the conTenliou.
If this ehoiild not be the case with all, it would probably be the
cu«o with many, and pretty certainly with those leading charac-
ters, on whom ovcni'thint; de]>cnds in such bodies. The convco-
tion, in short, would bo composed chieHy of men who had twcn,
kflr who setuHlly were, or who expected to be-, members of the
Fdepartmont wliuso conduct waa urraifriicd. They would conxe-
quently bo parties to tho very qufation to be decided by them. " '
§ 540. If, then, occasional or periodical uppuuls to the pi'ople
' vonid not oilord an offoctual barrier againiit the inroads of the
leipslaturo upon tho other dcpArtnicnts of the government, it is
manifest that resort must be had to some eontriranocs in the in-
terior structure of the gorernmont itself, which shall exert a
constant check, and preserve tbc mutual relations of each with
the other. Upon a thorough examination of the subject, it will
be found that this can be best aecomplistted, if not solely aecom'
pltab^d, by an oceasioual mixture of the powers of each depart-
ment with thut of the otliers, while the separate existence and
constitutional independence of each are fttlly provided for. Each
department should have a will of its own, and the mcmbors of
each should have but a limited agency in tbe acta and appoint-
ments of the members of the others. Bach nhould have its own
Nadependence secured beyond the power of being taken away by
either, or both of the otiiera. I)ut at the some time the relatitmn
d taeh to the other sliould be no stninir. that there should he a
mulltal interest to sustain and prot*^ct vach other. Tbore Hbould
not only be constitutional meana, but personal motives, to resist
en c roach nienttt of oni", or either of tlie others. Tims, ambition
would be made to counteract ambition; the desiro of power to
■ 1%* F*d«i*lb^ So. 4*. Tb* tnth of IM* t«Monlii(t •* well m tba ttttm iattt-
tmy of tajr micIi ptnodiokl conmilioM, U abiinilHitljr Mttbluiinl hj llis hatoi^ «l
F«aii«)>lrui* naicr ber tuumf ONuttntlan. Tkt FadardlM, K«. tO. 8m 3 Fitkia'*
Hbtorr. SM, Mfl.
i'H
cotmmmon or tsb tnnnD mns. [book m.
dbiMik p<>ir«r ; uul Uic preHuit! of ioterait to bslanoe sn opposiog
lllUiI'Mt.'
I M\, T\wTif H4'i'm» no ulecjoatc method of produciog this re*
mill litit liy a jiuHial (i«rtici))«tion of each in tlie povere of the
i(llt«ri uiil Uj liitrtxlucini;; iuto everjr operation of the gorern-
iDtilit, III III) itN liraiichflK, a Hymtcm of checka and balances, on
wlii<t)i l>iu aariitjr of frcv inatilutiuas has ever been found esseo-
(lally to ilirjiRtifl. Thiia, fur instance, a guard against rashness
ami tfolnuou in Icgialiition litm often been foond, hy distribating
IIhi )K>wor ninong difTvrvnt branches, each having a nogative
iiIhioIi ti|iim Ihit ol.|)»r. A guard against tlio inroads of the legis^4
lutlvfl (Miwi^r upun Uio »xeotiti\x' has been in liko munncr api>liod,
by giving tliii liitUT a t|iinlifl(>d nvgutiv» upon tho former; and 0>
giHii*! iiKHiiml «;xi'oiitivi> inlhivnco niid putroniige, or unlawful
eiDraliMi ii( iiulliurlty, by roiiuiring ttio conourronco of a select
oniiiioll, or a timnoh of tint K->rwliihtre. in appointments to ofRce,
Mid ill Ihn diachorgo of iilhcr higli functions, as well as by pla>
viiig the ooiiiiuimd of a roronuo in other hands.
^ Ml Tbc iikiihI gitani, applied for the security of the jodi-
oiul di'piirhiuntt, bos been in the tenure of ofBce of the judges,
wht) etnitinouly are to hold ofHoo during good beharior. But this
la ttbvitHuily uu iuailt-iiuato (jroriiiion, while the l^islatnre is lap
trusted with a i-^iuiiilcte power over the salaries of the jodgti^
aud ovrr ttii> jurisdiolii,)Q of the courts, so that they can alter or
diiniuinh thoiu at plrasnrn. lad««d, the judiciarr ts aatitrmllj,
a»tl ttluKwt ucvraaary (as has been already said)^ the
il«^r<iu«nt,''(a) h <--an hare no means ci infliMiea by
a^pv lt» )xtwv>r» oau nen'r be wteMed for itseH It baa no i
WMud i>\vr ihv )Htra» w thw sword of Uw nalM^ It
tfty taxtret uor a{if«\>firiate mcuMT, aor eoHHaad •imiea*
«t>l>«4nt to oakvo. U is laevw teva^k* iatm «aitert wilb the i
yiv tv v«NMtairi a|»f«*k »ai MMiitarin— ni4 pnvate
whk*h WhtM« to ftU Uw odNT dqwtaMb of <
•w« iwty bi iwHiwaiss. or ii
a«>B>«rta^K.ti.€b.c
«!•
CH. TU.]
DISTRIBUTION OF roWEBS.
405
rigid justice and impartiality give it no claima to favor, howerar
thov luuy tu rt-^pvct. It Htumhi solitary and unaupparted, except
by that |>ortioD of public c^iuion which in intcruittcd only in the
strict aditiiniatratioii of justice. It can ru-cly «ocurc the itym-
pathy or zealous support eillicr of the executive or tjie IciriHla-
tare. If they are not (w is not uDfrequcntly the cimo) jealous af
|ta prerogatives, the conittant necessity of scrutinizing the avt« of
rdach, upon the application of any private person, and the painful
doty cl pronouncing judgment, that these acts are a departure
from the lav or constitution, can have no tendency to conciliate
kindnesa or nourish influence. It would aeem, therefore, that
Bcnne additional guards would, under such circumHtanceti, be
ruwcssary t<) protect this department from the alwolute dominion
of the others. Yet rarely have any anch guards been applied;
and every attempt to introduce them haa )>een resisted with a
pertinacity which demonatrates how slow popular leaders are to
introduce checkB upon their own power, and how slow the people
arc to believe that the judiciary is the real bulwark of their lib*
ertica. In some of the States the judicial department is partially
combined with some branches of the executive and legislative
departments; and it is believed that, in those cases, it has been
found no unimportant auxiliary in preserving a wholesome vigor
in the laws, as well aa a wbolcaome administration <^ public
juatico.
§ 54S. How far the Constitution of the United States, tn the
actual separation of theao departments, and the oocasional inix-
tnrcs of some of the powers of each, has accomplished the obj<.-etB
of tho great maxim which wo have been cotisidenng, will appear
more fully when a survey is taken of the particular powers con-
fided to e^ch department. But the tnie and only test must,
after all, bo experience, which corrects at once the errors of
theory and fortifies and illustrates the eternal judgments of
natora
S 544. It is not a little singular, hnwerer, aa haa been al-
ready atate^l, that one of the pnnci|Hil objections ui^ed npiinat
the Constitution at the time of its adoption was thia occjuiunal
mixture of power*,' upon which, if tho preceding rcaaoning
(drawn, as must bo seen, from the ablest commentators) be well
founded, it must depend fur life and practical inUuence. It was
> TIm Folmlut. So. «7 ; Id. «S.
406 coHBTRimoK or TBS xnatxD stateb. [book ta.
Mid that the Beveral departments of power were diBtribated and
blended in snch a manner as at once to destroy all eymmetoy and
beauty of form, and to expose some of the essential parts <rf the
edifice to the danger of being cmshed by the dispn^NM^cmaie
vei^t of the other parts. The objection, as it presents itself in
details, will be more aceorately examined hereafter. But it may
here be said, that the experience of more than forty years has
demonstrated the entire safety of this distribution, at least in
the quarter where the objection was supposed to apply with most
force. If any department of the government has an nndoe infln-
ence or absorbing power, it certainly has not been either the
szeentiTe or judiciary.
en. tol]
<BE I.Kp'M.ATIJIH,
407
CHAPTEB Tia
TUG LEOISLATCBK
§ 545. The dnl article of the Constitution contains the atract-
ire, organixation, and powers of tbo It^slaturo of the Union.
Eachnection of that arliclPi and ind<.>«xl of m-vrj- otiior article,
vill require a careful analysis and distinct examination. It is
proposed, therefore, to bring each sepanteljr under review, in
preHnnt C'ommentarira, and to unfold the reasons on which
'each is founded, the ohjfM;iiona which have been urged against
it, and the interpretation, ho far an it can satiafactori ly b« ascer-
tained, of the tnrnut in which each is exprcsacd.
§ 546. Tlie lirat aection of the firat article is tn the following
words: "All legialatire powera herein granted ahall be x-eated
a CongreAa of the United States, which sliall consist of a
' Senate and House of Repreaentatirca. "
§ 547. This section involves, as a fundamental rule, the ex-
ercise of the legislative power by two distiiint and independent
branches. Under the confederation, the whole leginlativo power
of the Union was vested in a single branch. Limited aa was
that power, the concentration of it in a single body was deemed
prominent defect of the confederation. Hut if a silicic assem-
bly could propei-ly l>e deemed a fit receptacle of the slender and
fettered authorities confided to the federal government by that
I instrument, it could scarcely be consistent with the principles of
, good government to entrust it with the more enlarged and vig-
UB powers delegated in the Constitntioiu'
§ &48. The utility of a subdivisiou uf the l^slativc power
^into dilTcrcnt branches having a negative upon each other, is,
perhajis, at the present time admitted by moat persona of aound
reflection.' Hut it has not always found general approbation,
and is, even now, sometimes disputed by men of apcculatiru
> The rnlrtaliit. No. SI.
< JtBcnw* NMc« on VliglnU, lU ; 1 Kml'* Comm. 9DS ; V* Lalma em tlM
CoMtUatiaa «f BngluH]. & % eh. 8 ; a Aiwr. Homu, «, M, Got. Kuidolpk'*
L*tMr.
MS
CONSTITDTIOK OP THE OKITBD STATES. [BOOK III.
iogenuity and recluse habitii. It has been justly obsonred that
there is scarcelj^ in the whole science at politics a more impor-
tant maxim, and one which bears with grcator influouce upon
the practical operations of government It has bcun already
Btjitud that Pi^onsf Ivania, in her fimt constitution, adopted the
scheme of a single body a» the depositary of the Irgislatire
power, under tlio inSuenco^ as i« uudcnitood, of a mind of a
very high philo«ophical character.! C!eoi:g'ia, also, is said in her
first constitution (since cliaoged) to have confided tlie whole
legislative power to a single body.' Vermont adopted the same
course, giving, however, to the executive council a power of re-
vision and of proposing amendments, to which she yet adheres.* (a)
We are also told by a distinguished statesman of great accunu^
and learning, that at the fir»t fonnatiou of our Slate constitu-
tions it waa made a question of transcendent importance, and'
divided the opinions of our most eminent men. I^^islatipn,
being merely the expivs^ioit of the will of the community, was
thought to be an operation so simple in itfi nature tliat iuexp^ri-
cncod reason could not readily perroivo the neceitaity of commit-
ting it to two bodies of men, each having a decisive check upon
the acticHi of the other. Alt the argnmenta derived from the
analojry between the movements of )>oUticat bodies and the oper-
ations of physical nature, all tlie impulaca of political parsimony,
all the prejudices against a second co-ordinate legislative assem-
bly stimulated by the exemplification of it in the British Parlia-
ment, wore against a division of the legislative power.*
§ 549. It is also certain that the notion that the legislative
power ought to l>o confided to a single body, has been, at various
times, adopted by men eminent for their talents and virtuea.
Uilton, Turgot, Franklin, are but a few among tliusc who have
professedly cntcrlaincd and discussed the question.*^ Sir James
■ 1 Ailuiu'i Defenco oT Inaieta OoMititiitloai, lOS, IM ; S Pitk. Hut Wi,
304,311.
■ 1 Knt'* CdaiB, MS : S Pllk. HkL 81S.
• i Pitk. Uiit. 314, SIS ; CMut. «f Tcnaont. ITn. dt. S; fif lltf.
• PrMi>l«ui J. Q. Ailun^B OnttMi, *th Ju1.t, ISSl. 8m tlM AduM** Dctoee of
AnNClgtli CoiutitBtiaiw. (NT M.i 1 Kent'* Comin. SOS, M», 110;2 Pitt HkUVa,
800 ; Fkkjr'a UcimI PbikiMphj, & «. du 7.
• 1 A<Uiiu'« DtCcMM ol AMtricui CoMtiMtlMM, 3: Id. lOS; l<L IM; S PiLk.
HiaL 133. Aul«, |l IB, f MS.
(■} Aatt, p. 49X I"** W-
CH. nn.]
TRE LtCtSLkTUm.
409
Uaokintodh, in a vorlc of a controveniial character, written vith
a zoal and oloquvnco of youth, advocated the doctrine of a single
Icgislativo bodj.' PerhaiM his mature life majr hare changed
this early opinion. At ail evcnla, he can, in our day, count few
foUuwvnt. Against his opinion, thus uttered, there in the aad
example uf Prance itself, whoso first constitution, in 1791, was
fonncd on this basin, and whose procci>dinga thf^ genius of thin
great man wiut emjiloycd to vindicate. Sho stands a monument
of the foily and mischiefs of the scheme ; and by her subBequent
adoption uf a division of the lei^slativu power, she baa SL^curcd
to herself (as it is hoped) the permanent blcssiuKS of liberty.*
Against all visionary reasoning of Ibis sort, Mr. Chancellor
Kent has, iu a few {uigcs of pregnant sense and brevity, oon>
denscd a decisive argumcnU^ There is danRCr, however, that it
may hereafter bo revived; and indeed il is occasionally hinted
by gifted minds, as a problem yet worthy of a fuller trial.*
I 650. It may not, therefore, be iminstnictivc to review some
of the principal ai^uments by which this dtviaion is vindicated.
The fintt and most important ground is, that it ionu» a great
check upon _.undue,_ hasty, and opprcwivc Ic^lation. Public
bodtes, like private persons, arc ocrasiunully under the dominion
of atroDg passions and excitements: impatient, irritable, and
impetuous. The habit of acting together produces a strong ten-
dency to what, for want of a better word, may be called the cor-
poration spirit, or what is so happily expressed in a foreign
phrase, Ve»prit du corpt. Certain popular leaders often act^uire
an extraordinary ascendency over the iMxiy, by their talents,
their eloquence, their intrigues, or their cunning. Measures are
often introduced in a huri-y, and debated with little care, and
examined with h^ss caution. The very roHtlessness of many
minds produces an utter impoesibility uf debating witli much
deliberation when a measure has a plausible aspect and enjoys a
momentary favor. Nor is it infrequent, especially in east-s of
this sort, to ovcrIo<A well-founded objectioua to a measure, not
only because the advocates of it have little desire to bring them
t
> tUckiataah on iht French ReTolotlov (liM), tth *AU. pfL 2W to Srs.
• 1 Ktmt't Ommd. »», SID. * I Xcnfa Conu. SM to SIO.
* Hr. Tuckir. Urn lauMd utlior of tlw OawMntniw «« BlukatMm mtmt to
hoM til* ■lactrimv.ilMi • dlTUoa «l the Icgitktlv* paw ■ not luefnl or impartonb
SMl^ck. Bfack. Cooun. App. 32S, m.
410
CONSnTUTION OP TBE CNITCD STATIS. [BOOS IB.
JQ rcricw, but became the exponents are crft«n aeduced ioto a
credulo<L8 silence. A legbUtive bodjr is not ardinarily apt to
mivtntflt its own powero, nnd far leos the temperate exercise of
tfao«e powers. As it prescril>efl ita own riilfs for ita own delib-
erations, it easily relaxes thein, whenever any pressure is made
for an immediate deciaiou. If it feela no chc<:k but its own will,
it rarely has the Urmncss to insist upon holding a qaeatiun long
euouxb under ita oim view to tux and m&rk it in all its beuiiigB
and relations on society.^
§ 5&1. But it is nut mensly inconsiderate and rash te^latJNi
which is to be guarded against, in the ordinary course of things.
There is a strong propensity in public bodies to accumulate
power in tlicir own bunds, to widen the extent of their own in-
fluence, uud to Hl'sorb within their own circle the means and the
motives of pktroniH^. U the whole legislative power is vested
in a single body, tliere can be, practically, no restraint upon the
fullest exercise of that power; and of any nsurpution, which it
may seek to excuse or justify, either from necessity or a superior
regard to the public good. It has been often said, titat neoewitj
is the plea of tyrants; but it is equally true, that it is the ptea
of all public bodies invested with power, where no check exist^
upon it8cxercise.*(<i) )lr. Hume has remarked with great sft-
> I Kpot'* Comni. iCiS, fi09 ; S Amer. UmMma, M,'
' TIm ru-ilit; with which nvn gn*,t mva tattirv tliMiudTW with cxMsdlnj tlwlr
Mtuthntioinl pottrra «» n«»CT Ixtter wMnfJifiwi tWn by Hi. Jpffrregii'i own pntc-
tioo Mid csUDplcv •« (Uttd m him own Mrrapondcneg. In ItOi, be fBttnd into ■
Inal}', bj wliicb LonUUna wu t« becotna a put of tba Unlco, aHhoOfh (m wc bavo
w«n^, In bit own oplnlan, il wu BDconxtllniloiuJ. 4 JttfNUMi'* CaiTr*i>. I. & S, 4.
Anil, In 1810, h« toaUndod tar tht rtghl of tiM «x*CDtivc lo iiimhMK FlnrUi, If la hti
own o|iiBioa U>« ofiiwrtunily iroulil oth«rwi«e l« leM, notwilbunndjag it uigbt la-
*olrc a bsniignMOtt of the law. Id. IIB, ISO. Snob an the osaai|ilc« gircn of a
Sum nccouUy, which ia t* Mipcnak tbo Cooitttnti«iu and Uwa. Sod) ur. the |rin(n<
lihft whlnh, hi) oonUouUd, JiutUed bim U an ttnal of penona not «""'■""*■' t^ law.
Id. IH.
(a) Durinc tba lati dvll wu a p««t
aumbir of amata mot* iniulg wiUiout au-
dlorttT «f law ; aaiDt of iheaw d<nit>lka^ ia
Ilia balitf^ whJtA Wat •onialimm airowad
and joMified, that to avs Ihn CoaitilntiaB
and law* It wai nocsBiry in xht tmr.
pncy tbal tor ibe tiaw bang on Hiaa
tat^itti* Uwy (hoaU b* alkat. Uan/ of
tiMM cMw Mvar bcoaaw tb« tubjrct of
jndidal OMuhkntioe ; bat in Ex part*
MlUitpu. < Wall. 2, it «ai t\fttM. by ika
Sapmua Court that lb*guanntM« of Iii4i-
Tiilual liWrljr ia Iha Contiutlon were
isttodvl for a Mala of wu ■* wvU m •
ftala of |<nac^ and tvn oqaallj blading
apon raltn and prnjila at all tiaiM aad
naAiT all cireuuiatoaan. C
dt. VTII.]
THH LEOtHLATCRE.
411
gwity, that men are generally more honont in their private thui
in t)i<-ir [inlilio capacity ; and will go irnwtcr Icuf^H to serve a
pturtji-, thftn vhen their '>vn prirato interest, in alone cmcemed.
Konor ia a ^-oat check iifmn mankind. But where a conaidera>
hie IxkIv of men act tog^tJier, thin cheek ia in a f^reat mcuare
removed, since n man i» nuro to be appi-oved of by his own |>ar^,
for what promotes the e-ommon interent ; and he tioon learns to
denpise the (-lamorB of adveraiiriea.' lliis is hy no nieiuui an
opinion peculiar to Mr. Hume. U viil b« found lying at the
fonndation of the political reaaoningn of many erf the greateat
men in all ages, aa the rennlt of a close Burvey of the paasionfl
and infirmitiea, of the hiatory and experience of mankind.* With
a view, therefore, to preaerve the ri^hta and liberties of the peo-
ple againat unjnat encroachmenta, and to secure the e^iual hene-
fita of a free confltitntion, it is of vital importance to iatorpoae
some chock ugiiinst the undue exercise of Iho legislative power,
which in every government ia the predominating and almost
irresistible power.'
§ S52. This subject is put in a very strong light by an emi-
nent writer,* whose mode of rvmsfjning can^bc bc-st convoyed in
his own words. "If," says he, "wo should extend our candor
BO far aa to own that the majority tA mankind are generally under
the dominion of benevolence and good intentions, yet it must be
confessed that a vast majority frequently transgress, and what
is more decidedly in point, not only a majority, but almost all,
oonGne their botievuleucc to their fatnilloa, rolatiuiiK, penional
friends, parish, village, city, county, province, and that v«ry few
indeed extend it impartially to tlic whole community. Now,
grant hut this tmtli and the tiue^tion is deoidod. If a majority
are capable of preferring their own private interests or that of
< 1 Hvme'i Emj^ EMty Oi Id. Km>7 IS. Ur. Itttneu Im wid that "At
fiwctionariea of foV&e foww tunly atnaglbta la thttr dbpoctlioiM to okridg* tL"-
I JtScnMi'* Cormp. S77.
* 8ei I Mtat't DofmM of AnntMn CoortitMthMMk f. 131, LKtrr SS, 4e. : Id.
U»«T S4 ; Id. LfiXn Si ; I Uumt\ r.aMrl^ E^f 1< ; 1 WiUm'i Law ImL SM to
S97 1 t AiLami't IVf«ic« el Ammitma OcdiMilutioii>, loiter 0, p. SO*, to.
* Sf r. nuBit's tboo^b an ottni ittiktag and Mnvlticing ; but hi* tnoda of * p«iT-
Bn4 oMuacawMltli <1 Hame'i Kmmjt, Eonr 14)aonlwmtotMerUwmort<xkaT^Wt
Vi^riia of tlM biuaan ulad, cqiuUcd <miy hj Lod«'a OoMtitBtiiui «t CknUas.
n»m auinplM (how tb« Auftr of Rlfiav iMpUdtljr i^m tha mtn •pMalstiva
flffailsM «t itw w<««t nun.
* Mr. Jaba AiUhk
413
CONSTITUTION Of TBB UrrtTBD STATES. [BOOK m.
Ir famiiic«, counties, and partj, to that of the nation col-
lectively, some proTision must be made in tlic Conatitiition in
favor of justice, to compel all to respect the common right, the
public good, the uuireraal lav in preference to all private and
partial considerationa."' Again: "Of alt possible forms of gov*
emmcnt, a sorereignty in one assembly, successively chosen by
the )>eoplc, is, perhaps, the best calculated to facilitate the grati*
lication of self-love, and the pnrsuit of the private interest of a
few individuals. A few eminent, conspicuous characters will be
continned in their seats in the sovereig:n assemhly from one elec-
tion to nnother, whatever changes &i'& made in the seats around
them. By superior art, address, and opulence, by more splendid
birtli, repdtationa, and otmnectiona, they will be able to intrigue
with their people, and their leaders out of doom, until they worm
out most of their oppoeers and introduce their friends. To this
end they will bestow all ofRces, contracts, privileges in com-
meroe, and other eniolumouts on the latter, and their oonui-ctiona,
and throw every vexation and disappointment in the way of the
furm<.>r, until they establish such a flyst«m of hopes and fears
throughout the whole State us shall enable them to carry a ma-
jority in every fresh election of the house. The judges will be
appointed by thom and their party, and of consequence will be
obticquious enough to their inclinatiotiB. The whole judicial au-
thority, as well us the executive, will bo employed, perverted, and
profitttutcd to the purposea of clectionucrinir. No justice will be
attainable, nor will innocence or virtue be safe in the judicial
courts but for the friends of tlie prevailing leaders. Legal pro-
secutions will be instituted and carried on against opposers, to
their vexation and ruin. And as they have the public purse at
command, as well as the executive and judicial power, the public
money will be expended in the san>e way. No favors will be at-
tainable but by those who will court the ruling demagogues of
the hoiiae by voting for their friends and intitrumenta; and pen-
sions, and pecuniary rewards and gratifications, as well as honors
and ofTicca of every kind, voted t« friends and partisans, etc.
The press, that great barrier and bulwark of the rights of man-
kind, when it is protected by law, can no longer bo free. If the
autJiom, writers, and printers will not accept of the lure that will
> 3 A<lun'» D«>reDM of Ameriout OmnUtuUont. Uttltr 6. pp. SIS. »«. 8««
Sortli lanieMi Bmtn, Out. ISXT, f. SCS.
CB. vni.]
lEM LEOrSLATCBB.
418
be offered tbcm, they must submit to the ruin that will be do-
Dounocd agoiiut th«in. Ilie presses, with much sccrecj and
concealment, will be made the vehicles of calumny affninst tiie
minority, and of pam^-rie and empirical applauses of the lead-
ers of the majority, and no remedy can poBsihty l)e obtained, y In
one word, the whole system of affairs, and erery oonceivablo
motive of hope or fear, will ho employed to promote tho prirate
intoreflta of a few, and their obeequioua majority; and there is no
remedy hut in anna.) Accordingly we find in all the Italian
republics, the minority always wore driven to arnia in despair."'
§ 668. AnoUicr learned writt-r kaa ventured on the Iwld dec-
laration, that "9 flin^Io legislature is calculated to unite in it all
the pcniicious qualitii's of tin; different extremes of had ^rem-
meni. It produciw general wcnidiesii. inactivity, and confusion,
and these are intermixed witli sudden and violent fits of de«po(>
ism, injustice, and cruelty."'
§ 554. Without conceding that- this lan^nairc exhibits an un-
eziggemttfd picture of the results of the legislative power being
vested in a single assembly, there is enough in it to satisfy the
minds of considerate men, that there is great danger in such an
exclusive deposit of iU' Some obeck ought to bo provided, to
maintain the real haloncc intended by tho Constitution ; and this
chock will bo most effectually ohtained by a co^irdinato branch
of equal autiiorily, and different organization, which shall have
tlie same legislative power, and paAflens an independent negative
upon the doings of the other hranch. The value of tho check
will, indeed, in a great measure, depend upon this difference of
'organimtion. If the term of office, the qualificatioos, the mode
of election, tho persons and interests repr«s(.-nted by each branch
are exactly the same, tho check will be less powerful, and the
guard lees perfect, than if some or all of those ingrcdtonts differ,
so as to bring into play all the various tntercets and tnfluencM
^ which belong to a free, honest, and enlightened society.
§ 665. The value, then, of a distribution of the legislative
power between two hninches, each possessit^ a negative upon the
other, may be summed up under ttic following heads. First : it
operates directly as a socvrity against hasty, rash, and dangerous
I t AduM'i DtfntM (nf ABktricu OwtttvtiaM, 3S4 to SM.
• 1 WUnii'iLMLa:LSMto<M;TbtredMitiM, No. tt.
414
CONSTITD'nON OP TBB U»rBD 8TATB8. [BOOK Uf.
•a
legialation : and allows errors and mistakea to be corrected,
before they have produced any public misdiiefs. It interpooea
delay betwctii tlie inlroductioa und final adoptitm of a mouBur^
and thua funiiabva time for rvflcction, and for the kuccwwivo de-
liberations of dilTcrCDt bodies, actuated by different motives, and
orgauiEcd upon diCTerent principlM.
§ 556. In the next place, it operates indirectly an a prevcntire
t@ attempts to carry private, personal, or party obji'ct*, nut con-
nected with the common good. The very circuiiuilaiioe that
there exists another body clothed with equal power, and jealous
of its own rights, and independent of the inflnence of the leaden
who favor a jiarticular measure, by whom it must be scanned,
and to nhoni it must be recommended upon its own merits, will
have a silent tendency to discoarage the efforts to cany it by
surprise, or by intrigue^ or by cormpt parfy corabinationa. It
is far less easy to dci-eive, or corrupt, or peniuade two bodies
into a course subvorsive of the general good, than it is one;
especially if the elements of which they are compueed are
esiM-ntially different.
§ 557. In the next place, as Icjnslation necessarily acts, or
may set, upon the whole commtmity, and involves interests of
vast difficulty and complexity, and requires nice adjustments
and comprehensive enactments, it is of the greatest consequence
to secure an independent review of it by different minds, acting
under different nod sometimes opposite opinions and feelings; so
that it may be as perfect aa human witidom can devise. An ap-
pellate jurisdiction, therefore, that acta aud is acted upon alter-
nately, in the exercise of an indejvendont rerisory authority, must'
hare the incuus, and can scarcely fail to possess the will, to give
it a full and satisfactory review. Every one knows, notwith-
standing nil the guards interposed to secure due deliberation,
how imperfect all human legislation is; how much it embraces
of doubtful principle, and of still more doubtful utility; bow
various, and yet how defective^ are its provisions to protect
rigtits and to redress wrongs. Whatever, therefore, naltiroDy
and necessarily awakens doubt, solicits caution, utimrls in-
qniry, or stimulates Wgilonoe and industry, is of value to aid ns
•{pinst precipitancy in framing or altering laws, as well as
against yielding; to tlic suggestions of indolence, tlie selftsh pro-
jects of ambition, or the cunning devices of corrupt and hollow
CH. Tm.]
THE LBOreUATURIt.
415
demago|xiiP9. ' For thin purpose, no better ex|>e<li(<nt has, m yet,
lw«n found, than tho creation of an iiHlepen<lent branch of
cenanni to revise the legialativc enactments of others, and to ^
altfir, amend, or reject them at its pleasure, while, in return, its
own am to paos through a like ordeal.
§ 568. In the nest place^ there can scarcely be any other adc-
tpui» Moarity against cncroa^^lunentfl ujmn the conatitutiooal '
rights and liberties of th<> people. Algernon Sidney haa said
with great force, that tho lei^iBlatire power ia always arbitrary
and not to be tnutted in tli« hands of any who are not bound to
obey thi' laws llioy muko,* But it is not less true that it haa a
coustAnt tendency to overleap iIm proper boundaries, from pas-
sion, from ambition, from inudrcrlcncc, from the prevul<Mico of
faction, or from the overu-helming intlucnoc of prtvtitc intcrcsta.'
Under such circumstances, the only effectual barrier against
oppression, accidental or intentional, is to separate its opera-
tions, to balance interest against interest, ambition against am- .
bition, the combinations and spirit of dominion of one body
against the like combinntiotts and spirit of another. And it is
obvious that the more various tho elements which enter into the ^
actual compoaition of each body, the greater tho security will
be.* Mr, Justice Wilson has truly remarked, that "when a sin-
gle legialature is determined to depart from tho principles of the
Constitution, and itt uncoHtroltable pover tnai/ prompt the deter- -
TrunativH, there is no constitutional authority to check its prog-
leaa. It may prtwecd by long and ha8t>- strides in violating the
Constitution, till nothing but a revolution can check its caroor. ^
Far different will the cose be wlien tho legislature consists of -•
two branches. If one of them should de|*art, or attempt to dc*
port, from tho principles of the Constitution, it will bo drawD
back by the other. Tho very apprehension of the event will pre*
TOnt tho dci>arturc, or tlie attempt " *
* "Look,"Mji an lattHigutt wriUr, "inls mrj «odetj, ankljn pnMi« sm*^
nrm, ttid gtt U lb* imI mniatton «t thern. Hid it will be fomid that bv, vtrj Urn
mm ia vnry gnvramant, *md te At mo^ JtmaenUii^ ^crAop* Uu ftieal, »ta, la
(Kt, th« pnwna who giT« tlw ImJ tnd dlrtcdoN to >1) ohMt U bfMwht to pMi." —
TtuMghu apon tin PMitkd fitnatkn of tb« Ontod StrtM of AiiMrks, printod it
VttKwttr. 17BS.
* SMmt** DI*d. on OowratiMt, eh. 9, f 4&
* Tkt P(d«nUit, N<x !(. • M. !7m. SS, 1$.
* 1 yrSmm't Um L«Gt. SM : tU P*dmlW, Not. «, «1 Mr. JsnWton >h de-
cidedly in CkTM of * difMOB «t tiM kgitlatiTv fonfcr into two taaefeM^ m viO to
416
CONSTirUTION OP THE UKfTED STATES. [dooK III.
g 559. Such is an outline of the general reasoning \>j which
tho system of a neparation of the legiBlative power Into two
hrauchos has been maintained. Esperioact.' has shown tliat if m
all casos it Iiao not been found a complete check to incouBidereto
or unconittitiitional legislation, yet that it baa, upoii mtuy ooca-
sioos, been found sufficient for the purpose. There is not prtjlMi-
blj at this moment a single State iu the Union which would
conafut to unite the tvro bmnches into one asaiembty, though
tJiere haro not been wanting at all tiuie« minds of a high order,
which have been led by entliuxiasm, or a lovo of 8im|)lioity, or a
devotion to tljeory, to vindicate «uch a union with arguments
striking and plausible, if not convincing.
§ 560. In the oonvcntion which formed Uie Constitution, upon
the resolution moved, ''that the national l^^slature oitgfat lo
consist of two branches," all the Stotes present, oxG«])t Pennsyl-
rania, votvd iu the affirmative.' At a subsequent period, bow>
/ o^xir, seven only, of eleven States present, voted in the aflirmative,
three in the negative, and one was divided.' But, aithoagb in
the convention this dirersity of opinion appears,' it seems proba-
ble that ultimately when a national goTcrmnuut was decided on,
which should exert great controlling authority over the States,
all opposition was withdrawn, as tho existence of two brancbefl
furnished a greater security to the lesser States. It does not ap- '
pear that this division of the legislativo power became with the
people any subject of ardent discussion or of real controversy.
If it had been so, deep traces of it would have been found in the
public debates, instead erf a general silence. I'he Federalist
touches the subject in but few places, and then principally with
reference to the articles of confederation, and the structure of
the Senate* Id fact the oppooenta of the Constitution felt that
•*td«nt from ao snininatwa elhi* Xotc* on Tfrginh(pi IIi(), ■iiJ Mn fwntqionilfaw
•t Ihit psriod shell Uiia faiiKt wm dbniwr-l. 2 Pitk. Hut. 2SS. t>> Lolme. in liu
•oifc on tbo ConitlUiUoD af England, hu (th. 3, pt SI t, le. ) «onM wry irtTikitig ro-
mukion tbtMinaMt^t,in tlMpuMsoalmdrntod. n«bMndihdi "TlwrtMlti
of > ditLdon ut Ihe axeculiir* poinr a dtlMr s mot* at )«m apcady MUtiliahin0nt of
Ibo ijskt of th« alrongevt, or ■ contiaaal (UU oT ir>r ; Ui*l of k iliriuM of tfa* It^a-
IttlTo powtr U tltbcr trath or gcetnl tnnqsUUty." So* klio FlJtj'* Homl ud PoUti-
c*l PhikMopfaj, B. «, oh. 6, T.
> Joitrnal of the ConnniioD, 65 ; X Pltk. Biak ttS.
• Joaroal of Uu Connetbo, 140.
• Yatw-i MiauM, i BlUoi'a D«1«te«, M. TS, T< : Id. 87, M; 8»; ItL 134, 1SS.
• 71.C FodonlUt, Kes. 93, «S, eS.
CH. vriK]
tBE LECISLATTKE.
417
there vaa ad<litional security fri<ron to the States, aa Bmh, by
their re|>re»enUitit>n iu Uiv Sviiutv, tuul im tlio )ar^ Slates must
harcaonmnmndiii^ inlhicncc upuu tho actual buttU in tlio IIoHBe,
the lesser ritatos cuiilil not but uuit« in a d<»iru to tauiutaia tLoir
uwu equality in a co-ordiiiato branch.*
§ 5til. llaviufT coii8idorei] the g<^ii«ral reasoning by whiuh the
division of tho'li'giitlativc power hits bei-n jiutilk-d, It miiy be
proper, in conclusion, to give a sumniary uf thoso fn^unda which
were deemed most important, and Vfli'wh bnd miwt inl1ucnt!« in'
settling the actual stnicturo of tlic CoiiitlUiitiun uf the UnittMl
8ut«8. The question, of coiinic, had reference alt4>)^tker to the
eetaldishnient of thii Semite, for no one doubted the iimpriely of
Mtahlishiiig; a House of liepresenlatives, as a dcfHwitiiry uf the
legislatirc power, howerer much any miglit differ as to tlie na-
ture of ttR eouijiosition.
^ biii. In onler to justify the existenco of a senate with co-
ordinate ]K)wirns it was said, first, that it was a miafortime in-
cident to n-piiblicnn governments, though in a letis dr-gree than
to otiicr goveranienta, that Uiose who adntiniittcr then] niay for*
get their ohitgations to their constitnentu, and prove uufaitlkful
to their important trust. In this point of vinw, a srnnte, as a
second branch of the legislative asttenibly, distinct from and
dividing the power with a first, must be in all cases a salutary
4JlgCiki>u the government; It doubles the security to the people
by requiring tiie concurrence of two distinct bodies in nchcmcs
of usurjtation or perfidy, whereaa the ambition or corruption of
one would otherwise l>o sufficient. Thia precaution, it was added,
was fouudti) (in such clear principles, and so well undcratoud in
the United states, that it was 8iii)crHu'MUi to enlarge ou it. Am
the impi-obahility of sinister combinationii would be in pmpor*
tion to the disHimtliirity in the gimiits uf (he two 1>odieH, it niiut ^
be i»o!itic to (listiui^iBh them from eat'li other by every circuni-
stance which would couslst with n due hannouy in all proper
measuress and with the genuine principles of repnblican gov-
iioni.»
I 563. Secondly. The necessity of a senate was not less Jn-
Teateil by the prnpensity of all einglc and nmnerniis ns»t'mbliea
to yield to the impulso of suddt'u and violent jiossions, aud to be
> Tlie P'd-nlbt. Xo. 3S i Id. K<m. 37, 3H ; Id. Ka 19 ; 14. No. 63.
» Till! Fcii««iiji, So. ea.
VOL. I. — 27
c.l/u
418
CONSTITOTtON OP TUB CmTBD STATES. [BOOK UI.
sedoced by {actioua Icadcra into intemporatc nnd pernicious rcso-
lutiona. Examples of thin sort migfat bo cited without uumbur,
and from procL-vdiDp! in thu United f?tat«8 us well as from tbo
histor}' of oth«r uatious. A body which is to correct this ia-
Grmity oug'ht to be free from it, ond oonitoqucntly onght to be
less ntimcrouK, and to po88c«8 a due degree of firranees, and s
proper t^-nurc of offioo.'
§ 664. Tliii-dly. Another defect to be supplied by a senate
lay in the want of a due acquaintance vith the objects and prin-
ciples of le^riKlation. A fi^od govcniment implies two things, —
fidelity to the objcefa of the government; secondly, a knowledge
of the means by which those objects can be best attained. It was
,8agj;e«ted that in IJie American govcmmentfi too Uttte attention
'liad been paid to tlie last, and that the establishment of a tietiate
upon a pro]>er basis vould greatjy increase the chances of fidelity
and of wise and safe legislation. What, it was asked, are all
the repealing, c^jilaining, and amending laws, which fill and dis-
grace our Toluminoua codes, but so many monuments of delicient
.Tifldom, so many impoachmcnta exhibited by eaeh suixiccding
ragainst eaeh preceding session, so many admunitious to the peo-
ple of the ralue of those aids which may be expected from a
well-const itiitp<i senate?"
§ 565, Fourthly. Such a body would prorcnt too great a
iDUtability in the public councils, arising from a rapid succes-
sion of new members, for from a change of men there must pro-
ceed a change of opiniona, and from a change of opinions a change
of measures. Such instability in legislation has a tendency to
■ diminish respect and ci>nfldence abroad, as well as safety and
prosperity at home. It has a tendency to damp the ardor of in-
dustry and enterprise, to diminish the security of property, and
to impair the ro\'erencc and attachment which are indispensable
to the permanence of every political institution.'
§666. Fifthly. Another ground, illu.slratiug the utility of
[a senate, was suggested to be the keeping alire of a due sense of
national character. In respect to foreism nations this waa of
vital importance, for in our intercourse with them, if a scmpii-
loua and uniform adherence to just princi])K-8 were not observed,
1 TtM FtJaralUt, Vo. €t ; PaUfa IConl ud PolitiMl PliUaMphr, B. 0, ck- 0. 7 )
S ^lUcn'* taw Lert. U* to HB.
> Tlu Fedenlkt, Ifo. 6X. * Id. Ko. 6S.
CB. vni.]
THR LKUISLi^TORB.
419
it mint subject us to many embarnuifiments nnd collisloos. It ia
difRoiiIt to imprcAS upon a ninglo VkkIv, whiolt \s numerous nnd
changi;abt(>, a deep seiuie of the value of national character. A.
small portion of the prsiiw or blame of any particular moaaurc
can fall to Uie lot of any particular person, nnd the period of
office in Ro nhort that little reaponaibility is felt, aud little prid«
is indulged, ao to the course of tho ^Ternni«^nt. *
§ 567. Sixthly. It wa« urged that, paradoxical as it might
aecm, the want in fiome important case« of a dne renponiiibility
in the government arisws from that vory frequency of elections
which in other caaoB proditcea auch rcapouaibility. In order to
be reaflonahle, responsibility muat be limited to objecta withis
the power of the responsible party; and in ontrr to be effeetnal
it mupt relate to opcrationa of that |>ower, of which a ready and
proper judgment can be formed by the constituenta. Some
meaauren have singly an immi-^Iiatc and senaible operation;
otlters, again, depend on a succession of well-connected schemes,
and have a f^radual and pcrhajn nnobHcrved operation. If, there-
fore, there be bat one aaacmbly, cho«en for a short period, it will
bv diflltcult to keep up the train of proper mcasun'^, or to prmeire
the proper connection between the past and the future. And the
more numerous the body, and the more changeable its component
parts, the more difficult it will bo to preserve the personal re-
sponsibility, as wpU as the uniform action, of tho imccessive
members to the grt-at objects of the public woifaro.'
§ 568. Lastly. A scnuto duly constituted would nut only
operate as a salutary cbcck upon the repntteiiUttives, but occa-
sionally upon the people themselves, against their own tempo-
rary delusions and errors. The eool, deliberate aenae of the
community ought, in all governments, tuid actually will in all
free t^vcramenta, ultimately prevail over the views of their
rulem. But there arc particular moments in public affairs when
the people, stimulated by some irregular passion or some illicit
advantage, or misled by the artful misrepresentations of inter-
ested men, ntay call for measures which they themselves will
afterwards he the most ready to lament and eondcmn. In thMO
critical moments how salutary will bo the interference ctf a bt>dy
of rcsyicctablc citixens, chosen without reference to the exciting
cause, to check the misguided career of public opinion, and to
420
O0S8TITUTION OP TEB UNITED OTAraS. [BOOK lU.
Ruspend tho Lilow, until rcaxoii, justici^ out] truth can regain
tb«ir authority over tlic public mind.' It voa thought to add
Rfeat wi'i)ifht U> all Iht^e coiisidcrntinna that history Um infoniied
ua of no luug'livbd republic which has not a t)«uatc. Sparta,
Rome, Carthage, were, in fact, the onlj atatea to whom that
character can ho applied.'
§ S69. It will \m obaerrcd that sontc parts of (he foregoing
reaaoniug apply to tho fundamental importance of an actual
iliviflion of tlie Ingifilati^-c power, uud other parts to the true
prinoiploa upon which that division should l>e sutwequentlj- or-
ganized, in order to give full effect to the conHtitutional check.
Some pnrta go to ahow the value of a aenate, and others what
should l>e ita stnicturc in order to insure wisdom, experience,
ridolitjr, and dignity in its niemlicrs. All of it, however in-
structa us tliat in order to give it fair piny and inltuence as ft
coordinate hriinch of govemniont, it ought to he less numerous,
more select, and more diiral>!e than the other hranch, and l>o
chosen in a manner which should comliiue and represent differ-
ent iiiterrata with a varied force.' How far theae oltjocta arc
attained by the Constttiilion will l>o bettor seen when tho details
belonging to each de|>artmcnt ar« suocessircly examiiwd.
> Tlio PtJMntitt, Ku. 63.
• The Fedoralisl, Sft B3, TIict* are some rcry rtrikin^ KDuIn on tliii mfajtct la
the rwMmtiiff of llie canvciition. in the oonntT of Fjucx, cdlnl to oniitihlBr th« eoMtt-
tiilloii [irapotMl fur MaiMuhiuotli, in i;7S,* nod which wiu tntily Hrctad. "Tb*
lt^»Ulire (MW*)'," ulil llikl bodj, "mtut not 1>» Rv«Uil wflli on* WMinlilf. A il^l*
■ncmbly ii Cniiogiitly inDLUMici^ hy Uie ricM, rotlin, jwniont, and prqjodina of am
Indiriduol. It is liaUe to \>e anticioiu, and lo eitnipt itadT front Um bcrdoiu it hja
OS Ita coaaltocnta. It i* tnbjcd to ambition ; and a/Ur ■ ccria* of ytan iHU ba
I'minpud to T«t» IImII |i*rp>tiiaL Th« lony J\iriiaiiu»t tn Enttlaiid TOtrd ItatU
IwrprtuJ, and Ifanvbf for ■ (iui dMrofsiI tlic jiolilical Ifbnrly at t^c ■utij«<t. Rat-
tin-i VII gorenud by «n» repwctatlTt tattaahij, aanaklly dtcUd. Tlwjr anencBrdi
roinl thomMl*H friHM uwDal to Mptoinlal, then for Hh ; ind finally exBtttd tb«
paver of filllnit iii> all TatMKbs witlwnl appUMtlon to thntr conatlliMnla. Tba
gnraditncnt of HulUnd ia bow a tf rutifi lAoagA a rqiutlit' Tha nault «f a lini^
MHDUy «ll] b# hau* aad iadjgaand, ud tMr jttdgnamU freqnoitl; abmrd and
iBtoti*lMt4nt There muat be ■ aeorad body tn nrite whb eoolncM aad (riidMii and la
notrol with Hrmnna, Endcfwndoit upon tbo bnt, tilhtt t» thdr cnatjon or Mi«t«ne«>
Yet tliv Gnt mnal retain t riffat to ■ limUar ravUon and ouilnl vrtr Um aeonai.'
* Tb* FodctaliM, »«L 01, GL
■ IiU0MUlaailaap«niptalHtaii(l(4 "Th*E>»MltM«ll."a>awwprinwdlnm9. f
1BM« tha pMM^ freoi Mr. 9aTa|t«'a ntnUi K^irmitioa of tha CoBnMDtkm of Manacha-
wiu, prtatel la tha 1I«* En^and U^^tat 4k Hanh, ISIS. p. ». Sm abo, on tbl> anbjact,
Paky'* BtMtl Fhlkapphr, B..S. ch. T, p. ns I n* FedamUtt, Rot. la, es.
CH. Vni.] THE LEOISLATUBE. 421
§ 570. Thia discussion may be closed by the remark that in
the Romaa republic the legislative authority, iu the last resort,
resided for ages iD two distiDct political bodies, not as braDches
of the Bunie legislature, but as distinct and independent legis-
latures, ia each of which an opposite interest prevailed. In one
the patrician, in the other the plebeian, predominated. And
yet, during the co-existence of these two legislatures, the Ro-
man republic attained to the supposed pinnacle of human great-
ness.^
1 Th« Federalist, No. 34.
V
423
OOKSTITDTIOlt OF THE CKITED 6TAI£S. [BOOK ID.
CEAPTER IX.
H0D8B OF RRPKESENTATITES.
§ 571. The second Bcctiun of the; firat article coatains fho
structure aud orgauizaliou uf tliu IJuiuu oi Kcprcsontatires. The
fir«t clmii«e is as follows: —
"The House of Representatives sliivll ho com]>0)».-d of mcmbeni
ohoscu every second year liy the people of the nevoral .Suites, and
the electors iu each Rtat« sliall have the qiuilirtcations requisite for
electors of the mo^t numerous hraiich of the .State h'iri8kture."(4i)
§ 572. As sooD as it was settled tJiat the logiidative power
should he divided into two separate and distinct branches, a rory
important consideration arose in n^rd to the orf^nizution of
tlioee hranchrs res|)ectively. It is obvious that the organiziition
of each in auiiceptible of very great diversities nnd niodificalioiu)
in respect to the principles of repreitentation, the qiialificatioD of
the electors and the elected, the term of Hen,'ico of (he uicinbers,
the ratio of representation, and the number of which the body
should l*e com posed.
§ 67S. First, the principle of repreaentation. The Americtn
people had long been in the enjoyment of the privilege of elect-
ing at least one branch of the legislature, and in some of the ool-
oniea of electing all the branches compuBinfJ! the le^ittlatiire. A
bouse of repreaentstivea, under Turiuiis denominations, such as
a house of delegates, a house of eouimooa, or aimply a house of
repreaontativea, emanating directly from, and rcsjronfliblo to, the
people, and ])ossesaing a distinct and independent legislutive au-
thority, was familiar to all the colonies, aud was held by them
iu the highest reverence and rcsjiect. They justly thought, that
as the government in general should always hare a common
interest with the people, and be adminiatercd for their good, so
it was essential t^i their rights and liberties that tlie most ntuncr-
ous hnnch should bare on immediate dependence uptm, and
(a) A> m llu fowtn oC Ooagna cnw Maii elfctloat, see Ex pMa SbbtU, 100
V. S. 371 : Gi pwu CiuU, fl). t»-
CB. IX.]
BOOSS OP BBrREBCn-ATITES.
42S
AyiniMithy vitli, (he people.' Here wu no novelty in this view,
It was nut the more result of a 8t«t« of colonial dependence, in
whicli their jealousy was awake to all the natural encroachuicnta
of power in a foreign realm. Thejr huA drawn their opiniuns
and principloa from the practice of the parent country. Tboy
knew the ineotimahle value of the House of Commons, as a com-
ponent bi'anch of the British Parliament; and they believed that
it ha^l at al! times furnished tho best security against the op-
pnssions of the crown and the ariatucracy. While the power of
taxation, of revenue, and of supplies remained in the hands of a
popular bmnch, it was difficult for usurpation to exist for any
length of time without check ; and prerogative must yield to that
oeceBsity which controlled at once tho sword and the purse. No
reasoning, thcrt-forp, was necessary to satisfy the Auirrican peo-
ple of the advantages of a ho»B« of representatives, which should
emanate directly from themselves; which should guard their
interests, support thvir rights, express tlicir opinions, make
known their u-antit, redress their grievances, and introduce a
pcn'sding popular influence throughout all thu 0]>enitiuns of
tlie government. E.\pcrionce, as well «a theory, had settled it
Id their minds, as a fundamental principle of a froe govern-
ment, and rMiKfially of a rx^'publican goverumontf that no laws
ought to be passed without the co-operation and consent of the
roprescntatives of the people; and that thvsc representatives
ihould lie ehiuen by Uiemselvea, without (he intervention of any
other fnnctionaries to intercept or vary their responsibility.'
§ i>74. 'ilie principle, however, had been hitherto applied to
the political organization of the State legislatures only; and its
applieation to that of the federal government was not without
some diversity of opinion. This diversity had not its origin in
any doubt of the correctness of the principle itsvlf, when applied
to simple republics; but the propriety of applying it to cases of
confederated republics was affected by other indc|wndcut consid-
vrationa. Those who might wish to retain a very lan?e portion
of State sovereignty in its representative chameler in the coun-
cils of the Union, would naturally desire t'> have tlie House of
Keprvsentativcs elected by the Htate in its political cluumct«r, aa
> The Ftiknlut, ITo. Si I 1 BImL Coaaa. 1». 1» : P*le/> Uonl PUkMphjr,
Bl «, ch. 7 : 1 WiIim'« Li«r UeL <3> ta iS3 ; I WilMn'i Law Uct. IXI to 131
■ I Tnckcr'* Bltdc OiMm. A|ip. 33.
424
CONSTtTimOK OP THB ONITBD BTAT^. [itOOlf III.
nnder the old confederation. 'rhofi«, on the other hand, who
vifthed to impart to the government a. national chunicter would
OS natm-ally dc^sire an inde|M!ndent election by (he )>o<>j>1i> them-
8clvi!«i in their primary me«ting8. Prgbalily tJiPse ei ivum»tanc«8
had 8omo o]>cration upon the votes given on the question in the
convention itself. For it appoarti that, upon tbt- original propo-
sition in the convention, "That tlie memtiei'a oi the first branch
of the national le^slnture ought to be elected by tlie pnople of
the several States," aix Elates voted for it, two a^uinst it, and
two vere divided.' And ujwn a aubacMjucnt motion to strike out
the word "jieopie," and insert in its phico the word " leg'talat-
urc8," throe States voted in the afiirmativc and eipht in the
nejrative,* At a subsequent period a motion, that tlm wpresent-
atives ahottld bo apfwinted in auch manner na the Ici^inluturo
of each •State sliould dircut, vaa negatived, aix Sluii^ volin;; in
the alVirmative, three in ttiv nL-jrative, ajid oue JK-ing divided;
and the final vote in favor of an election by the people wu de-
cided by the vote of nine Stated in the ufGrmative, one voting in
the negative, and one being divided-^ Tlie result waa not there-
fore obtained without much diiMiuKsion and argunK-nt, though at
last an entire unanimity prevailed.* It is satisfactory to know
that a fundamental priaoiplc of public liberty has bit-n thus se-
cured to oursi'lves and our jMstority, which will foiiivcr iudiMol-
ubly connect the intctx-'ata of the jtooplo with ihotto of the t'uton/
Under the confederation, thougli the delegntcft to Congress might
> Jo«mi«l oT CcmTOilMin, Haf 31, I7S7, pfi. SS, 84^ IS£ [ i KUiot't Dtbatn {Yklcv's
Uinuta), i&-
> Jounial of CoDTKitiaa, Ukj 31, mj, pp. 103. IM ; 4 Ctliot'i l>Bb«M(l V»U«'(
ItisDUi), «S, 83; W. 01.
* Jonmal <ir CaavBalion, Jmw 21. 1TS7, pp. 140; Ml, SIS; 4 ElUat't Da1»tMv *»,
91 j{Y>tM'« »ii)Utf«).
* Joun*! ot Caovention, fp. Slfl, VS.
* Mr. Buikf, ia bu Itfllwtiaa* on the Ficiicb BaToIntioa, Iim tmtul tlw lulgeol
of the mischicfi of ua Indind eboiee onty ij the pfopb of tlicir Rjatmntulti-ea in •
, nuleriy inuauer. He baa dtnMiiMratod. that luch a «]r«l*in mut nnave all ml
' rwpanalbility to Itin pfOfJ* bom tli« n|««euiiftCivg, Ui. Jeirwiaau liu uprnted hto
apptotatioii of tlin jirinolfl* of a dinct diol«« tii ■ voiy qwIUicd nauMr. Ub ttyt :
" I appcora of tbe gnatn bouse bdng cbown b^ tlw pwpio dincily. Pm tlwagb I
thlali a bonir n cboirn will b* vM]r iornrioir to lb* pvirat Congiwr, iciX/ (c rrry ill
qiuUijlid la UyiJau/ar iSd Vnion, lor (<>n<i^ imtiaani, tr.., yvX Ihii «Til ilo«a not wtlgli
*^inil iIm gedd or i>rtmmiig InvioUlr Iba fatKbanimta] (iriuL-iiilo, Ihal ih* pc<i|>l«
, Augbt Bot to be taxed but by tvpratatjUiTa duacii Jnunodiatcdy by thanwalv**" —
IS JafttMo'* Conrop. y. 2T9.
CH. IX.]
HOUSE OP liePHeSI»TA-nTF».
425
have been elected by the people, lh«y were, in fact, in nil the
rStateA, «x<-ept two, elected by tbo State leg:ii}1at»re. '
§ iuH. We accordiu^ly find, tbat in the acction under constd*
eration, tJie Ilmise of ReprenenUtirca in iT<|aiivd to bo roniposod
of n-prcspiitativea choocn by the people of tbo SPveral Htntes.
I'lie choice, too, ia to be made immediateir by tliem ; rq that the
power is dircc-t, tlio intUiencc direct, and the res|M>QHibility di-
rect. If any intortnudiate agency had been adojitcd, snch aa a
choice through an electoral college, or by ofTicial porBona^^, or
by select and speciully qnalified functioonriefl pfo hne vtcr, it is
obviutu tliiii tbo dependence of the re prose n tut ive u]>oa the peo-
ple, and the responitibility to them, would have been far loss felt
and fur more obfltnicted. Inditence U'ould have niiturully grown
up wilh patronage; and liere, ax in mnjiy other enses, tbe legal
.mtxiin woiil<l have applied, eauM proxima, ncn rtmota, »peclattir.
The nele«"t biidy would have been at 0Dc« the pAtroiu and the
guidi^ of the ifpreiiontative; and the people thcnuelves have be*
CODie llie inatnunentn of subverting their own rights and (jowcr.
§ .ITt!. The indirect advantages from thiH immedialo agency
of tJio people in the choice of their representatives are of incal-
cnlable benefit, and deserve a brief mention in this phiec, be-
•oause they furnish ua with maiter for mo^t serious rofiei;tioii, in
regard to tlie actual ojwraliona and influences of republican gov-
ernments. In the limt jilaee, tlie right confers an additional
senae of personal dignity and duty upon the mass of the ]>eople.
It gives a Btn>ug direction to the education, studicA, and pur-
suits of the whole community. It enlatp^s the sphere of action,
and contributes in a high degree to tho formation of the public
manners and national character. It procures to tho common
people courtesy and sj-mpathy from tlieir suiwriors, and diffusvs
a commoQ conlidcnee, aa well as a common interest, thrungb all
the ranks of society. It awakens a desire to examine and sift
and debute all public proceedingx, and thus notirislios a lively
curiosity to acquire knowledge, and, at the name time, furnishes
tlie nietms of gratifying it. The proceedings and debnles of the
legishiture, tlio conduct of ptddic ofliecrs from tlte highi-jtt to tb«
lowest, the character and conduct of tlie executive and his min-
isterK. the nlmgifli-s, intrigue)*, and conduct of dift'en>ni parties,
and the di^oiisitiun of tho grv^at public nieasun?^ and quesliona
■ TliB FcdonkliM, No. 40.
426
CONSnumOlI op TBE UHITKD STATES. [BOOK lit
which Agitate and divide tlic community, are not onlj- freolj* cao-
I'tL^tod, and thus improve and elevate oonvenation, but they
gradiinlly furnish the mind vitJi safe and sniid materials for
judgment upon all public affairs, and check that impetuositjr and
rashness to which sudden impulses might otherwise lead the
people, when thej- are artfully misguided by selfish dem^oguea,
and plausible schemes of change.'
§ 577. But this fundamental princii>Ie of an immediate choice
by the people, however important, would alone be insufficient for
the public security, if tlio riglit of choice had not many auxiliary
guards utul accomimniments. It was indispousaltlc, secondly, to
provide for tli« qualifications of the electora. It is obvious that
even when the priiioiplc is eatablislicd that the popular branch
<rf the legisluture shall emanate directly from the people, tbero
atill remains a very serious fiuestjoo, by whom and in what man-
uer the choice shall be made. It is a quciitiou vital to the sys-
tem, and in a practical souse decisive, as to Uie diurability and
efficiency of the powers of govorument. Hero there is much
room for doubt, and ingi^nious speculation, and theoretical in-
quiry upon which different minds may arrive, and indeed havo
arrived, at very different results. To whom ought Uie right o£
suffrage in a free government to be confided ? Or, in other words,
who ought to 1)6 j>ermitted to vote in the choice ul tlio represcn-
tati%'es of the people ? Ought the right of suffrage to be abso-
lutely universal ? Ought it to ho qualified and restraineil 1 Ought
it to l>elong to many, or few ? If there ought In be reittraints and
qualifications, what are the true boundaries and limits of such
restraints and qunlificatious?
§ 578. These questions are sufficiently perplexing axA dis-
quieting in theory; and in the practice of different states, and
even of free states, ancient as well as modom, they have asAumed
almost infinite varieties uf form and illustration. Perhaps tliey
do not admit of any general, much less of any uni^'ersal answer,
so as to furnish ou unexceptionable and certain rule for all sgua
and all nations. Tlio manners, habits, institutions, characters,
and pursuits of different nations; the local position of the terri-
tory, in regard to other nations; the actual organizations and
< I httre batrowfcl thnc rism rroia Dr. Paley, iml Tou ottljr tkal bf *brii)git|g
Uw« I hava laMMd tbdr force. ?titj't Monl FUiatofhy, B. 0, ch. S. Sm Bba S
Wilaea'd Uw Uct Ml to 138.
OB. rz.]
HOUSE OP REPRESENTATITK.
4Zi
clBMe« of societ)'; the influeoow of peculiar religious, civil, or
political intttttutions ; the dangers fts well 08 the difTiculties of
itbe timeii; the degrees of knowledge or ignorance per^'adini; tho
mass of society; tlie national temperament, and even the cltniate
and producta of the soil ; the cold and thoujihtful gravity of the
Dorth, and the warm and mercurial exoitahility of tropical or
■ontliera rctrifHUi, — all tfae»c may, and probably will, introduce
fmodiricationH of principle, an well as of opinion, in rq;ard to the
right of auffragc, which it is not easy either to justify or to over-
throw.'
§ S79. The most strenuous advocate for universal suffrage haa i
□ever yet contended that the right should be absolutely uuirer' j
rBoL No one haa ever been sufficiently visionary to hold, that all
rpersons, of erei^ age, degree, and character, should bo entitled
to vote in all elections of all public officers. Idiots, infanta,
minoiB, and persons insane or utterly imbecile, have been, with-
out scniplc, denied the riglit as not baring the sound judgment
and diseretion lit for its exercise. lu many countries, persona
guilty of crimes have also bceu denied the right, as a personal
punishment, or us u security to society, lu most countries, fe*
males, whether married or single, have been purposely excluded
from voting, as interfering with sound pulley and the harmony
of social life la the few cases in which tlicy have been |>er-
mitted to vote, experience has uot jiistiCed the conclusion that it
has been attended with any corre^poudent advantages either to
the public or to themselves. And yet it would be extremely
dilTicult, upuu any more theoretical reasoning, to catablish any
> 1 BUck. Comin. IH, ITt. Mr SuMet Bttebtona (Id. ITI) hu tnoBriced,
" That lh« ini* trmoa of nqulrlafi mj qiMlUlwiion with Ttpai to (npttt; in nAart
is l« nchiil* luch ixnow ut are in w umbii a iitiiMlDB lliU Uw; «m Mtemwd to bar*
> wlU nf Umot own. If Umw p«ncaw bvl *oM^ Uwy •uiU<l U Unptol to illqww of
[ tbtn uniW MmB mdue infliwitto at Mbn. Thit «««ld gin ■ gn«t, ■■ arlfu], or «
'wmldir ma * Uf^( ilara In •bctlon* than b CMuirtMt vltb gtncfal Ub«tty. If it
'wm prvtablf thai tnwy nan w«oU ^t* hi* mta (My Md witttmit inflnenoo of uy
kind, then, upon tlic tnio ihrary tad pMiao ptisdplca of litMrtr. omry momlicr of lbs
■ Munonitr. howTfpr {uor, *bould have a vote in dtetiiig tltoM dolfgat** la irbea* cliarp
t la oanmiltcil tlw dupo«] of hU propettir, hU Utxtt;, ud lu* life. Bat dan that <ui
^haril; boaxpartMl In panoni of indigent tariauat, or mch m «i« nsder tlw ioMwliata
Dtnim of atfaata, all popnlM atalaa hav* Imw obUfsd to •ataUIA certaia ^Mlliw
' lk<i% wheittijr aoMi^ who sts M>|Mtt«l to Imt* no triU of Uitirow*. an> ait^liukd tnm
( Totiog. in onk* to art olh«r luilirSdoali, wbcaa will maj be Mppoaad init«p«B>lrht, nioi*
UionMiKhly upon a kvel witli muh otbo-.' Similar leaMoinii mlglii b* Mnpltjrcd to
[JuatUy otharaxdoiloBa, tmidn UutolMindad upon ■ want of pniperty.
4S8
CONSTTTDTION OP TBB DtOTED 6TATKS. [BOOK m.
■t)«ti(!fncU>ry priBcijiIo, upon whidi tbo one h:ilf of every eocietj
'.has tliuK been syittumattcallf esctuclcd by the other half from all
riglit of pnrtiei|Mitin|F in p»v«rnmt:nt, whicli would not, at the
same time, apply to and juslifr many olhvr exclusionit. If it bo
said that all lueu have a natural, equal, and uualtenablv riglit to
Tot«, because thoy arc all bum free and equal ; that tlicy all bavo
common ritrbt« and int«ro8ta entitled to protection, and therefore
have an equal right todoMde, either poreouaily or by their choMn
rcprcsentntiTcs, upon tJie laws and regiilations which shall eoO'
tro\, meajtiire, and itiiHtain those rijdits nnd tnlorcsts; that tl»ey
cannot he compel led to sun-ender, except by their free consent,
wliat, by tJie bounty and order of Providence, belongs to tliem in
. oomninn with all their race, — what is there in these conaidera-
Ititms, which is not efiually applicalde to females, aa (reet, intel-
ligent, moral, responsible beings, entitled to equal rights and
interests and protection, and having a vital stake in all tltc regu-
lations and laws of society ? And if an exception from tJio na-
ture of the case eould l>e felt in regard to persons who are idiots,
infanta, and insane, how can this apply to persons who are of
more matunt gron-th and are yet <leemed minors hy the mnnici-
pal law ? Who has an original right to lix the time and period
of pupils^ or minority ? Whencn was derived the right of the
ancient Orccks and Romans to declare that women should be
deemed never to be of age, but should !« subject to perpetual
guardianship? Uiion what principle of natural law did the
Romans, in after times, fix the majority of femalM, as well as
of males, at twenty-ftre years ? ' Who lius a ri^ht to say that in
England it shall, for some imrjioses be at fourteen, for others at
aevootevn, and for nil nt twcnfy-onc years; while in Prance a
person arrives, for ail purposes, nl majority, only at thirty years,
in Naples at eighteen, and in Holland at twenty-five?* Who
shall say that one man is not as well quaiilied aa a voter at eight-
een years of age, as another is at twenty-tivo, or a third ut forty:
Mid far better than most men are at eighty T And if any society
is invested with authority to settle the mutter of the age and sex
of voters according to its own view of its jioliey, or convenience,
or justice, who sliall say that it has not equal antJiority, for like
reasons, to settle any other matter regarding the rights, ijnalifi-
cations, and duties of voters ? *
> 1 Black. OMDtt. <«3, Ml. ■ ItM. * Id. ITL
CH. IZ.]
B0U9B OP EKPRCSCNTATITBa.
429
g 580. The tmlh 'se«inft io be tliat the right of voting, like'
man)' other rii^hts, is ou« which, whether it has 8 fixed f»iiiKla>
tlon in natural Uw or not, has alwaj-s been treated in the practice
of nations as a Htrictly civil right, dcritrd from, unil rvf^ilated
hy, each society, according to its own circumstances and inter-
ests.' It is difficult, ov«n in the atutract^ to conceiTe how it
could hsTO othcrwiso been trcutod. The tcmiH and conilitioiu
upon which any tux-icty is formed and orgnniitcd mui«t t;iuH'ntiully
dcjicnd u|xiii the will of those wlio arc awoeiatvd, or at least ot
those who cougtilute a niaj^jrity, actually cuntrolliu); the r^^st.
Originally, no man could liuve any right but to act fur hiuutelf ;
and th« power to cliooso a cliicf luagistrntc or other oITiccr to
exercise dominion or nutbority over others as well as himself
could arise only upon a joint consent of the others to such ap-
pointment ; and their consent might Iw qualified exactly accord*
ing to their own interests or |Kiwer or jwlicy. The clioico of
representatives to act in a legislative capacity is not only a re-
finement of much later stages of actual aasoeiatiou and civiliim-
tion, but could scarcely occur, until the society liad assumed to
itself the right to introduce such institutions, and to confer such
prinleges as it deemed conducive to the ptiltlic good, and to pro-
hibit the existence of any other. In point of fact, it is well
known that reprcHentatire legislative bodies, at least in the form
DOW used, an> the {wculiar invention of modem times, and were
unknown to antiquity.' If, tlien, every well-oi^nizod society
has the riglit to consult for tlie common good of the whole, and
if, upon tjio principles of natural law, this right is conceded by
the \'ery union of society, it scorns dlfTicult to assign any limit to
ibis right which in compatible with the due attainmcut of the end
pn^MScd. If, therefore, any society shall docm the common
good and interests of the whole society best promoted under the
Lparlicular cirrunwfauces in which it is placed, by a reslriclioa
of the right of KutTrage, it is not easy to state any solid ground
of objection to its eserciae of such an authority. At lisast, if
any society has a clear right tn deprive females, constituting one
half of the whole population, of the right erf suffrage (which, with
scarcely an exception, has Iwen uniformly maintained). It will
> 1 BlKk. Ctiniai. 171 : 2 WilMo't Uw U«t. IW ; H«iiW>qul««'» Sflril at Ltn,
B. tl, (b. a ; 1 Tnckvt'i HUck. Comiu. Apf. U, M.
■ B«t *Wi AriUvU*'* foUtic*.
430
CO.VBTITtTTION OF THK UXnTD OTAtZS. [BOOE ITI.
require some antutencfw to find upon vhat grotmd this exclusion
can he vindicated, which doos not jiifltify, or at least excuse, manjr
other exclusion!!.' Government, to uae the pithy Utit^af^ of Mr.
Burltp, ha.1 hccn deemed a practical thin.?, made for the happioess
of mankind, and not to furnish out a spectacle of anifomiity to
gratify the achemoa of visionary politicians.*
§ 581. Without layiiip any stress upon this theoretical rvason-
ing, which ia brought before the reader, not so mucli hucause it
solves all doubts and objections, as becauBc it presenls a view of
(he serious dirricultics attendant upon the oitsiiinplii.>u of nn origi-
nal and uniitifUDblu rif^ht of suffrage, na urigiiiuliitg in natural
Inw, and iudcpcudcnt of civil law, !t may bo pro{>er to state that
every civiliwd society hiis uniformly fixed, niodifitM), and regu-
lated the right of suHragc fur itself according to its own free
will and pleasure. ETeiy constitution of government la tbeao
United States has assumed as a fiuidainental principle the right
of the people of Die .State to alter, abolish, and modify the form
of its own government, according to the sovereign pleasure of the
people.' In fact, the people of each State have gone iniu'li far-
ther, and settled a far more critical question, by deciding who
shall he the voters entitled to approve and reject the eonatitution
framed by a dolr^ted body under their direction. In the adop*
titm of no State coniititution, has the assent been asked of any
hnt the qualifiod votera; and women and minors and other per>
sons not recognized aa voters by existing laws have been studi-
ouHly excluded. And yet the constitution has been deemed
entirely obligatory upon them as veil as upon the minority who
voted against it From this it will be seen how little, even in
the mont free of republican ffovcrnmenta, any abatrsct right of
Buffrogo or any original and indcfeaHiblo privilege has been rcc-
oguiicd in practice. If this consideration do not satisfy our
mindt^ it ut leoxt will prc|)arc us to presume that there may bo
an almost infinite di^'«^sity in the established rigiit of voting
without any State being able to assert that its own mode is ex-
clusivfly foundctl in natural justice, or is moat conformable to
sound policy, or is best adapted to the public Heeurity. It wilt
> Sm Palrft Moral Phil.3aapli]r, B. t, oh. Ti F^WS; 1 BUck. CmiitR. 171; Moi'
tnquicn'a Sfririt of Lam, B. 11, cit. 0.
> Itttik*'! Letter to tho Sberiff* of BtMcl In 1777.
* s)M Lodw oa OonnuMBt, f.i,^H9, aj.
CH. IX.}
noose op REPReSBNTATrVES.
431
teneh us Umt tho question is neceesarilj' complex and intricate
in its own uutun), itnti is scarcely susceptible of any Bimplc solu-
tion which shall rigidly npply to tho circomstances and condi-
tion*, the intercuts and the fculii^ii, the imititutiona and the
mniiners, of all nntioiu.' What muy brat promote the public
weal and secure tito puhlic liburty and advance the public
proflperity in on<> age or nation may totally fail uf itiinilar rc-
snlts under local, physical, or moral predicooii-nts us»cutially
dilTorent.
§ 5^2. It would carry mi too far from tho imm«diato object <ji'
thetw commentaries to take a general suney uf the various modi-
ficaticMiB under which the Hglit of sufTragc, cither in relation to
laws or magistracy, orereii judicial controveraios, has appeared
in different nations in ancient and modem tinica. I1ic exam-
ples of Greece and Rome in Micicnt times, and of England in
modem times, will Iw found moet instructire.* In England, the
qualifications of voters, as also the modes of representation, are
rinus and framed upon no common principle. The counties
are represented by knights, elwted by the proprietors of lands
who are freeholders;' the boroughs and cities are represented
by citizens and biii^esses, or others chosen by tlie citizens or
burgcsse*, according to the r|ualifications prescribed by custom
or by the respective charters and by-laws of each borough or
city.* In these the right of voting is almost infinitely varied
and raodified.*(<t) In the American colonies, under their char-
ters and laws, no uniform rules in regard to the right of auffrago
existed. In some of the colonies the course of the parent coun-
try was closely followed, so that fre«holder8 alone were voters;'
in others a very near approach was made to universal suffrage
' Dr. U«bor'« Kaqrclopnlk Ainidcui^ ail. CotulUiititm.
■ 8m S Adam*'* Amm. Coiutilal. UtlOT 8, p. SSS, ftc p. ItO, Ac ; 1 Bl*«k. Camo.
in, 172. ITS ; llMtMqiikii'* Sfttii of Uwt, Book 11, di. 19 1 Id. B. 1, eh. 1.
■ 1 Bbck Ctmm. US. 178, hiaj'* ll«nl FbOMofthr, B. fl, cli. 7; Dm r«d«r-
diit. No. ST.
* 1 BlMk. Camn. 17S ta 97G : I Tnck. VOtk. Coouu. App. S» to UJL Sm alw
Boike'* RtOtcUaiM od tht Fnnch BoTolstliM.
* .S«« Dr. UtUr-4 em9«^M(di• AmarioMi. uL JOtOim! Ormd AOote, OmmMm*
timof.
* 8m MIcnon'i Hotw OB nq[lnk, Ul ; ITkidui'iBhA.Oaiiuii. App. H to 100.
{a) Bat rfiMO tli«a* raounmtertM wro
wrttun Rtfena Acta hsn aluasHl tlia
bwi« or Mfiif* ta bi^iiid vny gnatly,
kdinltttng Iwp wiDtbtm to tU oxoltiM
i>lM««N«xchided bafoM, ud iBtradadiig
nBUbiBi^ tn ^Mliieatku.
■132
ooxsTiTcnox or tqe unitbu STATSit. [book m.
amon};fho males of compotont age; and in otborB, again, a mid'
die principle waa adopted, which made taxation and rotinf^ de-
pendent upon eaoh other, or annexed to it the quiiHficatiun of
holding some [lerMonal estate, or the privilege ol being a free-
man, or the eldest son of a freeholder of tjio town or corpora-
tion.' When the Uevoliition brought about the separation of
tlic colonies uiid Ihey formed ihemaclves into iude|>eudeut States,
a very striking diversUy wa* obacrt-nblc in th« originul conatitn-
tiotut adopt«d bj' thcui;^ and a like diversity has i>ervaded all
the constitutions of the now Stoteit which have since grown up,
and all the re\i»ed constitutions of the old States nhicli have
received t])c Rnal ratiflcation of the pec^tc. In flomd of tho
States tlie rijiiit of suffrage depends upon a certain length of
residence ami payment of taxen; in olhers uj>on mere citizenship
and reeidence; in others upon the ponsosnion of a freehold or
aome entatc of a particular value, or upon the payment of taxes,
or performance of some public duty, aueh as service in the mili-
tia or on Uie highwajs.' In no two of these State constitutions
will it be found that tlic qnaUfieations of the voters are settled
upon tlic same uniform busis.' So llml we have tho most abun-
dant proofs that among a free and enlightened people, conrened
for tho purjHHW of establishing their own forms of government
and the rights of their own \'oters, the question as to the due
regulation of Uic (|UAlification» bus been deemed a matter of mero
State policy, and varied to inct-t the wanta, to suit tlie preju-
dices, and to fosler tlic intci-cut^ of (he majority. An atwolnte,
indcfwwibl© right to elc«t or be elected secma never to have been
asserted on one side or denied on the other; hut tho subject has
been freely canvassed as one of mere civil |»otity, to be arranged
upon such a basis as the majority may deem expedient with
reference to the moral, physical, and intellectual condition of
the particular State.^
> Sm Chirtn of Bbod> liUad. 1««1. ouJ Rbode laUn-l T*n (edit, tm) p. 114.
8m «1w Connnrtieul ClurtFr, IKS!, ud UtxsuhiiKlts Chtrtcii, iOS *ii>l ttti.
* i Wibon'* Lav ImL 132 to lU ; fi PiULin'i IIUL ch. 19. pfi. S»l tt> 310.
■ i Wilaoo'* Uw [^t 113 to 138. Ifr. BuinD, Ia bit lilra ul n Vtitta CoutiMa-
treilili, iiropown (h»t tlw ntinwDlntivm aboulil b« TrN^ldcn of jtSO • jcar, wul
bc«ueliul<kni onrtb /LbM. 1 Hqdw's Kmys, Eoajr li, p. Hi.
* Sm Uie ftiUialul, Ifu. S4 1 S WiUoa'a Law LcctoMi, ISl to 1)9 ; S PItkUi'i
Rbt. !s4t»31S.
> Or. IJaboi'* EaeydopNdk AiiMrlcuiA, wt OnuUltUioiu <tf llk$ Vniud JMil
■n» F«d«l«lbl. Not. illaU.
CH. IX.]
BOmS OP RBPBESBNTATITES.
438
§ 588. It was under this known diversity of ooDBtitutional
provisions in regard to Stste elections, that the convention
which framed the Constitution of the Union was assembled.
The definition of the right of siifTrege is verj- jiistljr regarded as
a fimdiunental article of a, republican governnu>nt It was in*
ciinil>cnt on the convention, therefoi'e, to define and estalilish tliis
right in the Constitution. To have left it open for the occasional
regulation of CongreBS would have been improper, for the reason
just mentioned. To hare submitted it to the legislative discre-
tion of the States would hare been improper, for the same rea-
son, and for tho additional reason that it would have rendered
too dependent on the State governments that brancli of the fed-
eral guTcrnmcnt which ought to be dependent on tho people
atcme.' (a) Two modes of providing for the right of suffrage in
tlie choice of rcproscnlativos were presented t« the considerfition
of that bod)'. One was to devise some plan which should operate
naifarml}' in all the States, on a common principle; the other
was to conform to the existing divcisitics in tho States, thus
ereatii^ a mixed mode of representation. In favor of the former
coufBO, it might be nrged that all the States ought, upon ths
floor of the Uousc of Rcprvacntativeti, to be represented equally:
Ljthatthis could be nceompliahed only by (he a<Io)>tion of a uni-
form quali0catioa of the voters, who would tbuB express the
samo public opinion of tlic same l>ody of citizens throughout the
. Union ; that if freeholders alone in one State choMV tlio rcprosent-
. Uive, and in another all male citizens of competent age, and in
another all freemen of particular towns or corporations, and in
lUiother all taxed inhabitants, it would be obvious that different
Interests and classes wonld obtain exclusive representations in dif-
ferent States, and thus the great objects of the Constitution, the
[promotion of the general welfare and common defence, miglit bo
fimduJy checked and obstructed ; that a uniform principle would at
It bare this recommendation, that it could create no welUfoanded
Ijealousies among the different States, and would be most likely to
satisfy the body of tho people by its perfect fairnesA, its permanent
equality of operation, and its entire independence of all local legis-
lation, whether in the shape of Stuto laws or of amendments to
State constitutions.
I TlM r«knlUt, Ko. 6S.
(a) Sm the Itth uti ISlh AmtiidiMnto to tb« Coiwtitatloii.
Tot. I.— 38
CONBTITtrnOS OP THB UNtTKD STATES. [BOOK HI,
§ 584. On th« other hnnd, it might b« urged in favor of the lat-
ter eourec, that tlte re<lucing of the difTereiit qualiGcation«, already
existing in tlie ilifTercnt States, to one imifonn rule, would tui^-e
been * Tory diflicult task, even to the oonventiou itself, and would
be dissatisfactory to the people of different States.* It would not
ho very easy for the convention to frame any nilc which would
satisfy the scru])1cs, the prejudices, or the judgments of a major*
ity of its own members. It would not l>e easy to induce Virginia
to give up the exclusive right of freeliolders to vote ; or Rhode
Island or Connecticut the exclusive right of freemen to rote ; or
HassachuHctts the right of persons posacssing a given value ctf
personal property to vot« ; or other States the right of persons
paying taxes, or having a fixed residence, to vote. The subject
itscif was not Ausoeptittle of any very exact limitations upon any
general reasoning. The circumstances of different States might
create great diversities in the practical ojieration of any imiform
system. And the natural attachmenhi which loii^ habit and usage
had sanctioned, in regard to the exercise of the riglit, would ciilM
all the feolin-m and interests and opinions of c^-cry State againsk
any snbiitiiutial change in it« own institutions. A great embAT*
rossmont would be thus thrown in the way of the adoption of the
Constitution itself, which perhaps would be thus put at bazard,
upon the mere ground of theoretical propriety.'
§ &S&, Besides, it might be urged that it is far from being clear,
npon reasuiing or «xi>cricnci>. that uniformity in the composition
of a reprcseutntirc buily is cither desirable or expedient, founded
in sounder policy, or more promotive of the general good, than a
mixed system, embracing and representing and combining dis-
tinct inteiixts, classes, and opinions* In Knglond tho House of
1 Tho F«d*tmlM, No. iS.
* EhvIb oa tbu Comtitiitisn, ok. 4, p. 40.
■ Mr. hwik* nMaifnUjr tbou^t, that no fjrttafnorreFnMeUUTC gortniMMt codd
. U oT* vfthout m Urgg oitiMirtMn at AlBmrnt pcmeiii* mA inttTrnta. "Nothbig^"
1 my* ho, " li a dm) ind oiUqaal* Tnimentatlon of a Man tbit dooa not tvprtwnl its
■Ulily u ■«!! u it! prapnrtj. Bui m aMUl; b a Tigoixnu anil nctlTB piinri^, and
u pfopcrt; it tlnggiib, istrt, aiid liiiiid, it out iMvor l>« wb ftwn ttiti inTuioo of
Mlfljr, naleMHbr.outofalliinipaniiMi. pttdaminant in tli>n>|>rfwBtatMii." BnrWa
Beflwdnna m (h Frviuh Bcvotmloa. 8m ako ftbfi Utatl nOan^pky, Ke.tit.7.
In a tabae^ant pig* of lii) BcAcctlana on tlio FrmIi RcTolaiiAn, hadittimat Ilia
lli*Q bTorite tlMoiy vt wpwwinUIloo propowi for tho coiuiiitiliim of Pniic*, upon
th« ttjfde baai of tcrrilarj', populallon, and taxaUan, and ilmoimlniM with iirvat
dMRMUk iu iManvtaionoe^ lae>|matity, and biwnaltXncy. Th« tvfnMnuUna, too.
CH. II.]
HOUSE OF- BeraEsexTATtrea.
4«5
CummonB, aa a ropreaontatire body, is founiled u|>oii no uniform
principle, either of nuiubcnt, or clutw.ii, or places.^ The represen-
tutioii is madv up of punioiiB chimt-n hy clcctom having voir differ^
cut, Mild xiMuethucs verjr di«conlunt (juuhltcations : in sume caiiea,
pto|)erty i« cxcliwively reppeaenli-d ; In otbore, pHrticular trades
aud pwsiiit^; in otli«i-it, inhultituiicy and coipurute privilc^s: in
others, the reverse. In soiitc cmk* the rcpruseiitalives arc chusvn
hy very numerous voters ; in others, br very fow : in some eases a
single patron iioBSCBBes tJie exchisive power of chousinj? represent'
ativcs, as in noiuinatiMi borouglia; in others, very populous citie»
have no right to choose any representatives at all : in some cases
a select body, forming a very small part of the inhabituuls, has
the exclusive right of choice; in others, Mon-r*;»idont8 can control
the whole election : in some places a half-uiitlion of inhiihiUiuts
possess th« right to choose no more representatives than are
assigned lo the most insignificant liorough, vith scarcely an inhab-
itant to point out its local limits.' Yet this ine<iiiality has net'er
of itself been deemed an exclusive evil in Great Britain.' And in
every system of reform which hai* found publicfavor in that country,
many of these diversities have been embodied from choice, as im-
portant checks u)>on undue legtslation ; as facitilaling the i-eprescn-
totion of dilTerent interests and different opinions; and as thus
securing, by a well-balanced and intelligent representation of all
the various clas!«es of society, a permanent protection of tlie pul)lic
wn to i» ehoMn Indirwll;, liy tUctor* tppoiiitod by clccton. who wor» apin fhooen
liy othor electon; " The member.' tty* Sir. Itmfc^ " who gOM to the nattooal »•
•emM J i« not dioMti bjr tbe people, nor acciyimuble 10 Ihem. Tliei* tn tbrta tl«rtjma
bttM* be it choten ; two kM of mm^ttnttt ioVemm bat«w« falm wd tlie primair
■atmbly, u u lo rambr libn, u I ht*E Mid, m mfaundDr or > Ual*, Mid DM IbS
ItliTtvntMiTf nf th* |>r»ti1e wlUitn • rtalo." So modi fix mtn tbecny ta the hinda
ef Ttiionuy uiil ipMvbtiv* itatnmpn.
■ Ptlry'i Uoral niknophy. V. n. eh. 7. ^ UO. Vn to 90* ; De Lohnc, CmurL oT
SaRlaMd. B. 1. ch- I. n>- <"■ 0£ 1 1 Kenfi Omm. 2I» ; 1 Tuck. Black. Ombid. 1^
sod, tlQ, 211 ; 1 Wilaaii't Uw Lret. W.
■ Mr. Jvin^nuD is hit >r«ilt* on VIikIbU (199}, ImM* nth peat MmraUitNi upon
tW irapiro]>ricly of alluwing to tl!ir«riml ooimrlM in ihtt Bute the mim nambcr dl
npmtaUtiirei, without nny rtffinl to thrir rebtlne popahtion. And yet lu tli«
IMW otunidtnthai adoptrd In ISSft-ISSl. Tfr^h hM adlwrrd to the mw* lyttem In
riaHpW, ■D'l her prcstnt Ttpr*ivii1atl«a U >pfwnian«d npon la ■fUtmjr and Oil'
qMl hMift. («)
* Buil:«*« ttelloftlca* on llw TVandi Revolution.
<<■} I'ader tbe cetutitntiMi of Viigink of IBT3. iMuton Mid lepnnanlKtini ««r«
^pottionod bf infnktion.
436
coNsrmmos of the csitkd statbi. [book ni.
libertiM of the people, and a firm security of the private rights of
p&Tfiona and property.' Without, therefore, anseriing Uiat «uoh n
mixed repreitentation is absolutely and under all circumatanoai
the best, it might be safely affirmi'd that the existence of varioua
elements in the composition of the representatire body is not n^
oessarily inexpedient, unjust, or iit»ccure, and, in many cases, may
promote a wholesome restraint upon partiul plans of legislatioa,
and insure a vigorous growth to the general interests of the
Union. The planter, tho farmer, the meehaoic, tho merchimt,
and the manufacturer might thus be brought to act t*^cthcr, ia a
body representing each ; aad thus superior intelUgeueo, as well as
mutual good-will and respect, be diffused through the whole of the
collective body.'
§ 586. In the judgment of the convention this latter reasoning
se«ms to have obtained a decisive influence, and to huvo estab-
lished the Gnat result; and it was accordingly declared, in tho
clause under consideration, that " the electors in each Stata shall
have the qualifioattons requisite for electors of the most onnieroiu
branch of the 8tato legislature."' Upon this clause, which was
finally adopted by a unanimous vote, tiie Federalist has remarked :
** llic provision made by the convention appears to be the beet
that lay within their option. It must be satisfactory to every
dtate, because it is conformable to the standard already established
by tl>c 8tate itself. It will be safe to the United States, because,
I Ur. VQton in hb Lectnn* (430 to 433), eoiuidcn ttic inoqnali:^ of nptrantts-
tioa la Xia IIoum of Cominnnii u a pramlnont defect in tlu Britiah gonnnMit. Bui
kit obJvcUous in umiiily urititl t^nal Iha mod* «t apporttoniiif tit* nprMMtatiw,
anil not aguiut tho ijuoliAcAtiont of the roten. In the r«fonn mtm andt* Uw «on-
thbniloa of Puluimanl, then i* ■ ytrj gnat divonitr of diKland ^BkllBoallana
iJto«(d, and apparanitr aupfortad bj all partita. Mr. Iturko^ In hi* HaAfctiaM on
tbt FroDch BcrolutioD, holdit doMriiw* cmMtially diArnnt In nany points froM Kr.
WiUon. See aba in Wynne'* Eunotniu, Dialogue 3, H '^ ''■ ^> *» ingoioua da*
tutsv nt th* exbtinit qrxtcm In Onai Brilain.
« Sm PttVa UonJ Pt>ili>M|ibT, B. a, «b. 7, p. SBO; Id. »H. 8m alao FnaMln'i
lUaftukai 3 Titk. Hit*. U% Dr. I>alay haa plaoed Uw iMqoaltUM of rvpnaintaltoii
ia Ui« ijooat of Commonx in ■ strong li^t ; and Iib haa atteniplad a TiikUaation of
thorn, nbkli, wlictber tattifaetorx or not, i* at Icaat atgti witli groat aldll and i^pm*
Itjr of muoai^ PJcj't Uotal riiUMoplij, B. 0, dt. 7; n^ 9S1 t» MOi 8m alia t
PVIk. Hl«. S*S.
* Journal of OMimntian, S10, S3S. ^a daiiMv hovartr, did not paaa vltlw«t
opfoaltiaa i ■ motion to stfikc out waa maila and Mgalirad, aana 8lat«a rotiAR la tlia
MgUlTC, «im In tbe aSmutiva, and one boiag divfdid. ioun. «f OoavanilaQi 7
Aii(aiC Ik tU.
CB. IZ.]
BOtTBB OF BCPSESKNTAnTES.
487
being fix«d bj the Sute constitutions, it is not alterable bj* the
State governments, and it cannot bo feared that the people of tbe
States will altor Uiis part of tlicir constitutions in sucb a manner
as to abridp; the Hfrhts secured to tlicm by the Federal Constitu-
tion.'* ' Tlic rvm&rk, in n general sciisc, is true ; but tbe provision
has not in fact, and may not hare, all the soi^iritr against altera-
tion b}' the State governtnenta which is so confidently afBrmed.
At tbe time when it was made, Coiuiecticut luid Rhode Island
were aeting under the royal cliartera of 1662 and 1663, and their
g^hiturvs potiscsaed the power of modifying, from time to time,
lie right of anfTri^r)!. Rhode Island yet continues without any
written constitution, unless the charter of 1663 is to be deemed
such, (a) In Maryland successive Icgislatun-s may change the form
of government, and in other Htutdi amendments may be, and in*
deed have been, adopted, materially varying tlic rights of 8uf>
[{rage.* (A) So that u>)«olute stability is not to be pn-dicatcdof the
•existing modes of suffrage, though there is little practical danger
of tny changes which would work unfavorably to popular rigtits.
§ 687. In the third place, the term of aervioe of repreaentatires.
In order to insure permanent safety to the liberties of the peoplCt
other guards are indis[>enBable besides tJiosc which arc derived
from the exercise of the right of sulTrage and representation. If,
when the legislature is once ohosea, it is perpetual, or may last
during the life of the representatives, and iu case of death or
resignation only the vacancy is to be supplied by the election of
new representatives, it is easy to perceive that in such cases there
will be but a very slight check upon their acts, on the part of the
people. Iu such coses, if the legislative body should be once cor-
: ruptcd, the evil would be past all remedy, at least without some
[tiolcnt revolution or extraordinary calamity.' Bat when different
lle^lativc bodies are to succeed each other at short intervals, if
[the people disapprove of the present, they m:iy rectify its faults
[by the silent exercise of their power in the succeeding election.
) TU Ftadenlbt, No. a. Sm alw > EUiot'a D*tetc^ SB ; 9 WIImu'i U« Lwt
133, 180, 191.
■ 8rt S WUMit'* Uw UA KM (.4), IM, IST.
* 1 BlKk. Ccnus. laS 1 lfM(««{attu'i 8plril <J I^n, B. 11, di. S.
(a) Tbf dwrtM- of Etbod* Itknd con- ftannd Dpoti « man llbanl btuit of nf-
l^tisMd to be its oonMitalion «f gortni- fnwi. uid na HLaplMt by ifat feo| W.
t tiatll 1840, wbcB ■ «iHwtb«t)on WM W ThU la ao lonc>r uw of UtrjUnd.
438
coKSTiTunoif or the trsiitn) stA-res. [book mi.
Besides, a le^slatire assembly vbich is sure to be separated again,
tad its members soon return to private Ufe,vi]l feci its own ititer>
eats, as well as duties, bound up with those of tJto community at
large.' It may. therefore, be safely kid down as a fuuilamimtal
axiom of republican governments, that there must be a depend-
ence on, and n'siionsibility to, tlic jn-ople, on Uic jjart of the rep-
resentative, which Bhull cuastuutly exert an iiifluenco upon his
acts and o|iinions, and produce a s}rnip«lhy iH-twoen lum and his
constituents.^ If, wlicu ho lit oucc oieclud, he holds his place for
lift.', or duriuK good behavior, or for a loug period of yoaiii, it is
ob%-ious tliat (here will be Itttic cITeclive control exercised upon
him, and he will soon lenni to disregard the wishes, the interests,
and even the rit?hts of his constituents, whenever (hey interfere
with hiM own seltish pursuits and objects. When appuinlcd, he
may not, indeed, consider himself as excliteivcly their rcpru>cut»-
tivc, bound by their opinions and devoted to their peculiar local
interests, ollhou^h Ihey tuay be wholly inconsij^tent witJi the good
of tlie Union. He ought ratlier to deeut himself n njprc«cntative
of the nation, and bound to provide for ttu; general welfare, and
to consult for the general safety.* lint still, in a just sense, he
ought to feel his respoitsibility to them, and to act for them in
common with the rest of the people, and to deem hiukself, in an
emphatic manner, thcii- defender and tlieir friend.*
- % 688. Frequent electiona are unquestionably tJie somtdcet, if
not the sole policy, by which this dependence and aympnthy and
responsibility can be effectually secured.^ But the question whftt
degree of frequency is host calculated to aocomplisli that object, t»
-' > 1 8)*ck. C^MniM. 18>.
• ■ Th« Frdcnliri. No*- SS. 57.
^ ■ 1 Black. Conuo. 1E9. See «Lp) Dr. Fmsklin'a K«miuk* ; 3 Pltk. lliil. Hi ;
BtwU M Con**. t$, 33. But we I Tockar'i Black. Coiutn. A|>|k m ; 4 ElllM't Dt-
bMM. 909. Ur. Buil;i! In kU kjiMefa lo tbt olKton oS BriMc-l, in ITU, kta trtahd
tlili sabjeet with gnat •Mtdcr Bad digiitt 7 and kbiiitj'. " rariuiOMit." luil br, "U
not a ooDgnM of rnnSi-lfri Irom diAretit and ttvatlk iktctmU, wbieh tulorrvU
fneh miist mnintiilii u ui i|pnt and adnx»t* ^piaM otIiRBtinnrii and ulvMatni. But
Parllninnit U a <t«llbn«tive OMiinbl; cf ob* uatkm, ultli olio iiilpnct, tkat of llio
wholu i nh«ro uot IomI purpotM, not loeaJ iirvJn'lK-m, oniclit U> gBi<l«, bat Uib geMral
gijod reaultitig from the BBuem] mhw at Kht oliultf. Yon ctMoac a uenbcr ladatd ;
but when jroQ hava diaara lui^ be it net a MMbw of BriMol, but ha U a awihit at
Pirllainnit." See, on tUiMlyrct. ITnelc. Dlaek. Coata. AppL IDS; I Lknd'a Dfb.
fnl789.p^ l99U>-il7.
* 8MBmt>''>8|>m<^(*tlMEUcicn«f BtiiUlIami.
• ni PedenOUt, Moa. S% S7.
CH.1X.]
BOtJU OP
TATZTtS.
489
not sasceptible of any precise and univenial answer, and must
■ e8ii«nlin1lf depend upon rery different vousidcratiotu in different
natians, and vary n-itli their size, tbeir a^re, their ctmdttions, their
inatittitiooa, and their loi'al peculiarities.'
§ 689. It baa liccn a eurreut ubM-Tvatiou that " where annual
«lcctiooK end tymmy begins."* But this remark, like many
Others of a general nature, is ofien to much ()ui.'«itiou. There is no
prctenoo tiiat tliere is any natural eumivetiun between the period
of a year or any other exact revolution of time and tJie poIitit:al
liaages lit for gove-rnments or magUtrates. Why is the election
a magistraie or representative more safe for one year than for
two years T For one year more than for sin months ^ For six
jinontlH mnre tlian for thre« months ? It i» certainly competent
1 for a state to elect its own nilei-a, daily, or weekly, or monthly, or
annually, or for a lonj^r period, if it is deemed expedient. Id
thb reapect it must bo or ou^-bt to be trovemed by its own con>
▼enieaoo, intercata, and safely. It is, therefore, a qucation of sound
policy dependent upon circnnutances, and not resolvable into any
b^Molute olemeiita dependent upon the revolution or return of
batural seasunit.' The aim of every political constitution is, or
ought to be, first to obtain for rulers men who possess most wis-
dom to disoern and must virtue to pursue the common fp>od of
the society, and in the next place to take the most effectual pre-
cautions for kcepin); them virtuous whilst they continue their
public trust.* Various mcnim may be resorted to for this purpose ;
and duubllcas one of the most eflicicnt b the frequency of oloc-
tjons. But who is there that will not perceive upuu the sligfatest
1 Dr. Paloy. with ki* iwn*l firwtical >enw, liM mmritH! b legard t« lb* mmpoii*
I wtd Ubdm of oSm of die Btitldi HaawoTCainmMii, tb«t "tbo nnmtitr, tk* for*
•sd qwJUjr of tlio ntMnUn ; (k* vuiMy of iuttmtU ud ckuubn uuoi^
I ; ofcuM all, OU tempvmy rf urafton tf their ymirr, tiiit lb« <Ji*iig« of DMD, IthM
rMwalcctioiipraduMa, — nrBBainanr ncurilin to tb* piiblhv •* ^oU a^llut the
abjmtlas of thdrindgmenta to ujr eitpmal dictatjon, m i^inst tho Gwmkliaa «f ■
in ikMr awa badr, nlfflcicntlr powMful to ROTcm tlicir dDcUioDa. The njov-
I ue •>> imlcmlxMl vitli tb* c««tilDenu, nhI t^ eowtlUMalt wlUt tbo mt
' til* peofJe, that tbef ounot. wlthonl « pattUily tea lUgruit to \>t MidnrrJ, tn-
Fbm* utf banlfD wpon llie mitrlKt. in wlii'li llirj 'to not tliire llii?inKli'<«. Nor
oly oaa Iha; odoft w> ulrantaftros* nlatioa. Id vhub Ihsii own Inleitsb wilt not
tipale of tlw ailv>nlaic°." I*4lr}-'i MonI DiUoHphy, B. A, cb- 7.
■ The Fcdmlitt. Ho. SS. So* MontotqiiUu'a Spirit of I^-ti, B. 3. ch. 8.
■ TIk Fodetnlbt, >'os. b% S3 i*MoalMqiiktt'* Sptrll of U>% & 9, fk. Si 1 EUkt'a
ZMalM, 30. ai. ».
* TtM F«d>im]Ut, Ho. 67 ; S EUtefi DtlMtM, 4S.
440
coKSTmmoN op the chited states. [book m.
examinatjon d the subject what a wide space there is for the
exerdse of discretion and for di^nraitf of judgmi>itt ?
§ 590. Witliout prctcndinf^ to go into a complete survvv of the
subject in nil it« buiu-ings, the frequency of elections amy be ma-
t«riallj affcvtcd as miUUtr of policy by the extent uf the popula-
tioD and territory of a country, the oonoentratiou or sparscneH o£
the population, the nature of the ptir8uit« and employments aod
engagements of the people, and by Uio local and political situatjon
of the nation in regard to contiguons nations. U the goremincnt
be of email cxt«nt, or be concentrated in a single city, it will be
far more easy for the citisens to choose tlieir rulers freQiiently,
and to change them without mischief, than it would be if tlie ter<
ritory were large, the population sparse, and tJie means of inter-
course few and liable to interruption. If all the inbabitania who
are to vote reside in towns and villages, there will be little inoon-
venMUce in assembling together at a abort notice to make a
dunce. It will be far otherwise if the inhabitants are scattered
over a large territory, and are engaged in agricultural pursuits,
like the planters and farmers of tlie Southern and Wcxteni State's,
who must meet at a distance from their reapcctivc homes, and at
some common place of aaaembling. In oases of this sort the sac-
rifice of time nccesBary to accomplish the object, the expenses of
the journey, the imperfect means of communicstiuo, the slow pro-
greoB of interchanges of opinion, would naturally diminish the
exercise of the right of suffrage. There would be great danger
under such circunuitaiices that tliorc would grow up a general in-
diSerenoo or inattention to elections if they were frequent, since
they would create little interest and would involve heavy charges
and burdens. The nature of the pursuits and employments of the
people must also have great influence in soltling t)ic qui^ion. If
the mau of the citizens arc engaged in employments which take
them away for a long period from home, such as employments In
the whale and cod fiBheries, in the fur trade, in foreign and distant
commerce, in periodical caravans, or in other pursuits which re-
quire constant attention, or long-continued lahors at particular
Heasons, it is obvious that frequent elections which should inter-
fere with their primary interests and objects would be at once hi-
conveniont, oppressive, and unequal. T3icy would enalile the few
to obtain a complete triumph and ascendency in tlie affairs of the
State over the many. Besides, the frequency of elections must be
CB. IX.]
B0D8B OP BEPBESENTATTVES.
441
subject to other cooaiderations affecting the general comfort and
convenience aa well of ruliira as of electora. In the bleak regions
of Lapland and the farther north, and in the sultry and protracted
heats of the south, a due rapard must be had to the health of the
inhabitants and to the ordinary means of travollin);;. If the terri-
tory be Urge the rcpresontutircs must come from great diatances,
and are liable to bo retarded by all the v-arictit-a of cUmate and
geotogicsl featurca of th« coimlry, by drifts of impnaaablo anowa,
by sudden inundntiona, by chains of mountains, by cxtcnsivo
prairioH, by numerous streams, by aaudy deserts.'
§ 691. The task of legislation, too, is exceedingly difTerent in
a email state from what it is in a largo one ; in a state engaged in
a single pursuit, or living in pastoral simplicity, from what it is
in a stat« engaged in the inlinitely raricd einploymcnta of agri-
culture, manufacture, and commorce, where enterprise and capital
^Tapidly circulate, and new legislation is constantly rei]uircd by
the new fortunes of society. A aingle weok might suRioc for the
ordinary legislation of a State of the territorial extent of Rhode
laland, whiln several month.^ would scarcely sullioe for that of
New Yorle. In Great Britain a half-year is consumed in legisli^
tioB for its diversified interests and occupations ; while a week
would accomplish all that belongs to that of Lapland or Green-
land, of the narrow republic of Gcncvn, or of the subordinate
principalities of (icrmany. Athens might legislate, without ol^
fltrocting the daily course of ounmon buainesa, for ber own
meagre territory ; but when Rome had become the miatresa of the
world, thfl year seemed too short for all the exigencies of her
Bovereignty. When ahe deliberated for a world, she felt that
.legislation, to be wise or safe, must be slow and cautious ; that
Dowledge as well as power was indispensable for the true go^tim-
ment of her provinces.
§ 592. Again, the local position of a nation in regard to other
nations may require very different courses of legislation and ver;'
different intervals of elections from what wontd be dictat^Ml by a
ease of its own interest and convenience under other circunw
'ttances. If it is surrounded by powerful and warlike neighbors,
its own government must be inreatcd with proportionately prompt
[■means to act and to legislate in order to repel aggressions and
aecuro its own riglits. Frequent changes in the public councils
■ 1 EUiot't D«1»tM^ SS, AoM*'* Sp«aek
442
coNSimmcw op thu dmted states. [book ul
miglit not ooly Ivave U exposed to the hnzard of baviug no cfK-
civDt budf In eiistvnce to net upua any sudtlcn ouivrgcncjr, but
a.la»i l>y Oh: fluctuations of opinion nucoiwurilj growing out of
tbcse cluuigus, intruducc imbccilil}', irivftululion, and tliv want of
duo iuformntion into those councils itvu, to net with vigor and
cfl'cot, must have time to umtiire mca«ui-i?«( and judgmfint aod
CxpL-ricncc as to the l>Cflt method of iippij-ing IIk-iu. I'ttey must
not bv hurried oo ta their eoiic)u»ioii« by the pa«»it>uii or the fears
of tJio inullilude. lliey mimt deliberate as well a» resolve. If
the powor drups from ihcir hundtt iK-fore thej- have an opportunity
to curr}- any system into full u(rtM;t, or even to put It on it3 trial,
it is impussibic (hat foreign nutiona should not be able by in-
triguw, by false alarms, and bj corrupt iaflueuoes, to defeat Uie
vJBcst mcasun^ uf the best patriots.
§ 593. One other consideration of a general nature deaerre*
attention. It is tliat while on the one hand conatantly recurring
elections uJfurd ft great security to public liberty, they are not, on
the other hund, without some dangers and iDconveuitinoes of a
formidable nature. Th« very freiguency of elections has a ten-
dency to create agitations and disitensiuns in the public mind, to
nourish factions and encourage restlessness, to furor ru«h innova-
tions in domestic legislation and public policy, and to produoe
riolent and sudden changes in the administration of public affairs
founded upon temporary excitements and prejudices.'
§ 5M. It is plain that some of the considerations vrhioh have
been stated must a{)ply with very dilTerent force to the condJtkta
and interests of different states, and they demonstrate, if not tlie
absurdity, at least the impolicy of laying down any geticnd niaxini
as to the frequency of elections to legislative or oUier ofhccs.'
There is i]uilo as much absurdity in laying down os a general role
that where annual elections end tyranny begins, as tlicre is in
saying that the people are fi'ee only while they are choosing
their lepreseatatiTes, and slaves duriug the whole |ieriod of tlieir
serrice.
§ 595. If we examine this matter by the light of hi»tory, or at
least of that portion of it whicb is best entitled to iuKtruct us on
the point, it will bo found tliat there is no uniformity of practice
or pruici]4e among free nations in rcfjanl to elections, tn Gog-
< 8m Mr. Amw'* 8pM«l>. 1 Klllot't P«t<UM, SI. U ; Ai»a'< VToHu, 90^ ti-
* HoBMi]Uin>'a Spidt ot Umh a S, «L S ; 1 EUM's IHUUt. M t« 4L
CH. IX.]
DOtrSB or BEPBESENTATtTBS.
44d
I«nd it is not e^sy to trace out uiy very dcoided course. Tito liis-
torv of PftrliamoDt alt«r Magna Charta proves that that body had
been aceustotnod usually to assemblo once a year; but as tJiosc
8«8«ionft wer« dc|)endcnt upon ih« good pleasure and discn-tion of
th« crovR, very long and inconvenient intcrniisitioiis occasionally
occurred from royal oontrivaoce, ambition, or policy.* But even
wIku Parlinnioui was accuntonied to sit erery year, tlio Dioinlieni
wt^ro not ohosen every year. On tlic contrary, as Utc diftAnliitiou
of Pnrlianipnl was solely dependent on the will of tlie crown, it
might, and fonnrrly it somrtin>c8 did. happen that a single Parlia*
ment lasted through the wboli> life of the king irho conventMl it.'
To remedy th<>f(e grievances it waa provided by a otatuto passed in
the reign of Charles the Se4!onc),0iat the intcmiissiunH should not
bo protracted beyond the period of three years ; and by a subse-
qaent statute of William and Mary, that the same Parliament
should not sit longer than three years, but be at the end of that
period dissolved and a new one elected. This period was, by a
statute of George the First, prolonged to seven years, after an ani-
mated debate ; and thus septennial became a substitute for triennial
Parliaments.^ Notwithstanding the constantly jncroasing tuQuonce
of the House of Commons, and its popular cast of o[iinion and
action, more than a century has elagiscd witjiout ajiy successful
effort or even any general desire to change the duration of Parlia-
mi>nt. 80 that as the EnglUh constitution nuvr stands the Parlia-
ment must expire or die a natural death at the end of the seventh
year, and not sooner, unless dissolved by tlie roya! prerogative*
Vet no mnn t<ilerahly well acquainted with the hitttury of Great
Britain for the lost century would venture to afhrm that the
people had not enjoyed a higher degroe of liberty and induence in
ail the proceedings of the government than ever existed in any
antecedent period.
§ .IIW. If we bring our inquiries nearer home, it will bo found
that the history of the American colonics before the Revolution
affonis an equally striking proof of the diroraity of opinion and
iisage. It is very well known tliat the principle of representation
in one branch of tlie legislature was (as has already been stated)
1 Tb* FtdFnlict. No. ax. * 1 TtUek. Omdhi. l», lad mM.
* 1 Rkck. Lomm. I»9 ; Tfat Padai^M, Vo*. M; M i 1 Ellicfa DabatM^ 9T, «B ;
S miot't DrlMt'^ 4S.
* 1 Black. Coiun. 1S9 ; The TeitnlM. Bo. SI
444
CONRTtTUnOK OP THE UKtTBD STATES. [bOOE HI.
CBtablished in all tJie fiolonien. But the periods of election of Uie
repreBpntativea were very different. They raried from a half-year
to seven yeare. In Viripnia the elections were septennial ; in
North and South Carolina, biennial ; in Masnachuiiettii, annual ; in
Connecticut and Rhode Island, semiannual.* It haa been Tery
justly remarked by tho Foderaliat, that there is not any reason to
infer from tho spirit and conduct of the represenlatiros of the
poopto prior to tho Revolution, that biennial flections would have
been dangerous to tho public liberties. The spirit vhidi every-
where dbtpluycd itself at the comineiiccment of tlic stnii^lc, and
whieh vauquishcd the obetncica to indoi>cndcuce, is the best of
proofs that a aufficjent portion of liberty had been e^-crywhore
enjoyed to inspire both a sense of its worth and a ceal for its
proper enlargement. This remark holds good as mcU with regard
to the then colonic* whose elections were least frequent as to tJioee
whose elections were most frequent. Virginia was the colony
which stood lirst in resisting tlic parliamentary encroachments of
Great Britain ; it was the first also in espousing, by a public Mt|
the resolution of indeix-ndence. Yet her house of representatives
was septennial.* When, after the Revolution, tJie Stales freel/
framed and adopted tlioir own constitutions of government, *
similar, though not so mnriced a diversity of opinion was exhib-
ited. In Connecticut, until her recent constitution, the repre-
sentatives were choMn semiannually ; in Rhode Island they are
still chosen semiannually ; (a) in South Caroiiria, Tennessee, North
Carolina, Missouri, Illinois, and Iiotiisiana, they are chosen bien-
nially : and in the rest of the .States annually.' And it has be<n
jitittly observed in the Federalist,* that it would not be easy to
show tliat Connecticot or Rhode laland is better governed, or en-
jay» a greater share of rational liberty, than Soutli Carolina (or
any of the other States having biennial elections), or that either
the one or the other of these States is distinguished in these re-
spects and by theoe causes £rom the States whose elections oro
different from both.
t The Pnlmlid, Ifo.St; I Edlofa DvIiMm. U,4Si S lUiot'a DebttM, IS; 9
KUM* JMMa. 40.
■ Th« r*d««alU), NcL C3.
■ Dr. UtUr't Sncycl. An«fie■ai^ ut. amMhMtmi tf tin VkOtd SMm; 8 KlUot't
DsttttM, SM; 1 Ktal'i Coata. SIS.
* Th« P«du*lMt, Ko. 03 i S Eltiot'* DobaUs, im.
(a) Thb b nM nam Xtw.
OB. IX]
HOUSE OP RBPSESENTAnTES.
44S
§ 597. TttMC rcnuirkB arc auflidcnt to MtabliBh tho futilitf of
the maxim a]lii<Icd to respecting tlic value uf annual uluctiuns.
The <)ue«t)on, how frequent elections ahould be, and what should
be the term of service of representatives, cannot be answered in
aay universal form, applicable to all times and all uatiuiu.' It is
very complex in its nature, and must ultimntel}- resolve itsvU into
a question of policy and sound discretion with rcforenoo to tlie
particular condition and circumstances of each nation to which
it is sought to be applied. The same fundamental priiiciplca of
goycrnm<>nt may require very different, if not entirely opposite^
practices in different States. There is great wisdom in the obser-
Tationa of one of our eminent statesmen on this subject. " It is
f^>parent," said he, *' that a delegation for a very short period, a*
'ibr a single day, would defeat thM design of representation. The
election in tliat case would not seem to the people to be of any
.importanoc, and the person elected would think as tightly of his
appointment The other extreme is equally to be avoided. An
election for a long term of years, or for life, would remove the
member too far from the control of the people, would be dangerous
la liberty, and in fact repugnant to the purpoecs of the delegation.
The troth, aa usual, la placed somewhere between the extremes,
and I believe is included in this proposition : the term of election
must be so long (hat the representative may understand the inter-
ests of the people, and yet so limited that his fidelity may be
laeeured by a dependence upon their aj^rolmtion."*
§ fidS. The question, then, which was presented to the consid*
eration of the convention was, what duration of ofBce on the part
of the members of the House of Representatives was, with refers
encoto the stnicturc of the other hranchcs of the legislative depart*
ment of the general government, best adapted to preserve the put^
lie liberty and to promote the general welfare. I say with reference
to the structure of the other branch^ of the legislative depart-
ment of the general government, becaum; it is obvious tliat the
duration of oflice of the President and Senate, and the nature and
exteot of the powers to be confided to Congrcita, muat most ma-
terially affect the decision upon thU point. Absolute uuuuimity
upon such a subject could hardly bo expected ; and accordmgly it
> 1 ElUot'i DrIabB, iO, 41. t%. ,
* Hr. Ano > Spoech, 1 EUM'i DcM«, SO, SI ; AJoa*! Wotb, « : t Elliot'*
D«UtM,M,M.
446
coNRTiTurrox ttf TUB dnited states. [book tu.
will 1)6 found tliat no inconaidprable diversity of opinion waa
exhiliitn) in the discuiiaion in the convention. It w-as in tbe liret
in»tancR dpcided in a committee of the whole thut the period
flhoiild bo three years, seven States voting in the affirmative nod
four ill the nefrative.' lliat period vrux ttft«rwards struck out by
R vote of the convention, seven Slutes voliii)! tti tlie aflinufttivc,
three in tJie negative, and one boiai; divided, and the word "two"
was unanimoutly inserted in its Hteod.' In the subsequent rcvisioa
tbe clause took tbe shape in which it now stands in tho Consti-
tution.
§ 599. Tho ffflsons which tinull}- prevailed in the oonvcntioa
and cistfwhero in favor of biennial elections iu prcici\-uce to nay
other poriod may be arranged under the following heads: —
§ 600. In the lirst place, an nrgumcnt might properly be drawn
from t)ie extent of the country to be governed. The teriitorial
extent of the United States would re^juire the representatives to
travel from great distances, and tlie an-angemcnis rendered neoc«>
sary by that circumstanoA would furnish mucli more serious ob>
jections with men tit for this service, if limited to a nin^lo year,
than if extended to two years.* Annua) elections might be very
well ada]ttod to the State legislatures, from the facility of coa-
vcning the members, and from the familiarity of tbe people with
nil the general oltjeota of local legislation, when they would be
highly inoonvonient for the legislature of the Cnion. If, when
convened, tho term of Congress was of short duratioQ, there
would scarcely be time properly to examine and mature measures.
A new election might intervene before there bad been an oppor>
ttmity to interchange opinions and acquire the information indis-
pensable for wise and salutary action.* Much of tlie businesa of
the national legislature must necessarily bo postponed beyond a
single session ; and if new men are to come every year, a great
part of the information already accumulated will bo laai, or be
unavoidably o]>en for rc-examination before any vote can be
properly had.
§601. In the next place, however well founded the maxim
t Janmal ot tU ConTrntion. fp. «r, US, 110, 136 ; 4 ElUot'i Ddnte (TitWl
UdlutM). 70, 71.
■ Journal of th« Conrcittiaii. jif. Ill, 107, tlS ; I CUot'* DcbaM*, SO ; i Elliot't
DclMte* (YntB'i Uinub^i), \f^. 92.
■ Tha FolcfaUit, Ka. fiS ; 1 tOkie* Jkbtkm. tO. ID. 41, 42.
• Th« FfJfnUu, Ko. G3 ; 1 Elliot'* DoUlw, 40, 11, IS.
CH. IX.]
RODBB OP BSPRBSKNTATTTE8.
447
might )>c, that wlii^rc no ntiwr cirotini«taucc8 affect thv cose, the
greater the )>oii-«r ir, th« shorter oiiglit to be it« duration ; and
conversely, Uie Hmnllcr the power, the more safely tt« duration
may he protracted;' that maxim, if it applii>8 at all to tlw
governnient of thff Union, wa« favoraWc to the extension of tlic
period of ftervioe beyond that of the State iegislattmi*. The
powers of Con^HA are few and limited, and of a natinnnl clmr-
acter ; those of the &t»te Iegi8latiiri>» are general, aiid ha^'e few
poeitlve limitations. If annual elections are safe for a State, hi-
eunial <!lt><;tionH would not )>e leu safe for tlio United Statnt. No
just objootion, then, could arine frwn thia aource, upon any notion
tiiat there ironld Im a more perfect security for public liberty in
annnid than in biennial etoirtiona.
§ 602. But B far more in)])nrtant consideration grows out of
the natnre an<l objecta of the powers of Congress. The aim of
erery political couHtitiitian is, or ouglit to be, first, to uhlain for
rulers men who po««)c»s most wisdom to discern, and most virtue
to pursue, the common good of society ; and, in the next place,
to take the must effcetuul precautions for keeping them virtuous
whilst they continue to hold their public trust. Frwjuent elec-
tions have, without question, a tendency to accomplish the latter
object,^ But too great a frequency will almost invnrialilr defeat
the former object, and in most cases put at hazard the Istter. As
has been already intimated, it has a tendency to intrmluce faction
and rash councils, and passionate appeals to the prejudices ral)>cr
tiittn to the sober judgment of the people. And wc need not to be
'reminded that faction and enthusiasm are the instruments by
which popular governments are destroyed." It operates also as a
ifrcat discoura^'ment upon suitable candidates olTenngtlicmselveB
or the public service. They can hara little op{Kirtouity to estab*
lish a solid reputation as stute«mcn or patriots, when their scheme*
are liable to Im suddenly broken En ni>on by demagogues, who
[may create injurious suspicions, and even diRpiace them from
Bffice before their mcasiirt^ are fairly tried.* And they are apt to
9w weary of iv^nlinued app«aJa to vjndieate their ehnnwter and
'oondnct at the [lulls, atnoe Buocess, however triumphant, i^ of such
short duration, and confidence is so easily hxisened. These con-
> Tbr FfdenlUt, Va. S> ; llDntnqsini'a BjttH of la*t, R 1, cAi. S.
■ The FedeniUt, Kol b7 ; 1 Ktet'i Conat. 21S.
■ Ahum'* SpMch, 1 FJllot'i TMM**, 33. • ] K«ni'a Cmau. tlS.
448
CDNSTmrnox op the ctrrso states. [bixis m.
siderations, which arc olwaj-a of some weight, are espedally sp-
plkable to senices in k natioaal legislature, at a distaoee from
the constituents, and in cases where a great variety of infornu^
tion, not eoMljr accessible, is in<top«isab)e to a right undenrtanding
of the coodnct and ^otes of representatives.
§ 60S. But the rery natore and objects of the natioaal
ment require far more cxperienoe and knowledge than what msj
be thought requisite in the Bkembers of a State legislature. For
the latter a knowledge of local interests and opinions ma; ord>>
narily su&ioe. But it is far different with a member of
He is to legislate for the interest and welfare, not of one
only, but of all the States. It is nut enough that he comes to tte
task with an upright intention and sound judgment, but be
hare a comiKtcnt degree of knowledge of all the subjects oft'
which he is called to legislate, and be mtat have skill aa to tke
best mode of appljrhtg it. The latter can scarcely be
but by long expenenoe and training in tbe national conneila.
period of service ougbt, therefore, to bear some proportim to the
variety of knowledge and pnettcal skill which tbe doties of the,;
•tatioQ demand.'
$ 604. Tbe most superfidal glaaee at the rdative dntiea of a
nMoibor of a State ki^slatare tad ui tbcaw of a member of Co*-^
grees will put this matter in a striking li^rt. In a sii^e Stats
tbe habits, mannen, institutions, and laws are tmifonn, and all
the citiiens an more or leas caoversaot with ibco. Tbe nUi-:
tive bearings of tbe various parsoits and oecnpalions of tbe pMH
pie are well nndentood or easily ascertained. Tbe geaci^l aSuts
of tbe Slate lie in a comparatively narrow compass, and ate daOy |
disenased aitd examiaed by tboae who have an immediate ii
in them, and by freqa^t commonicaiiaa with each other caa in-
terehaage opiaknis.* It is very different with tbe general gov^i
eniment There every measure ts to be diseuased with lefereaea |
to dM rights, interests, and puimila of all tbe gtatrn. Wbea I
yte Coaatitatioa was adopted there nre thirteen, and diere an
now twenty-four States, baring diffetvct laws, iastitntksM,
ploymenta, prodorta, and cUmaie*, an>i many artificial aa well
as natural differencea in tbe stracton of society growiag oat of
ttatata, <t ; 1 EcBt* CMiB. na.
M, ST. s^ «a^ 4t i U. »: s DM^
CB. IX.]
DODBE OF
MTtTES.
419
these circumstaDCCB. Some of them are AlmoBt wholly agri>
cultural, flouic cununervial, some manufacturiog, 8ome have a
mUturv u{ all, imd in no two of thorn ara thore precisitly the same
rvlativv luljuBtmvnti) of all these Intereata. No legislation for
tiie Uttion can be safe or wise which is not founded upon an ac-
curate knowltMl^ uf tliBBO dii'emtieti and thoir practical inHuenoe
upon public measures. What may bo twneficial and politic with
rofcrcniM? to the interests of a single State Jnay be aubveraivo of
those of otlicr States, A regulation of conunerco wise and just
fur th« commcreiul States may strike at the foundation of the
pruspi^ity of the ajn'icultural or mauufuctunng States. And,
ou the other hand, a measure beneficial to agriculture or muuu-
faoturca may disturb and even overwhelm the shippini; interest.
Large and enlightened viewa, oomprchensive tuformatioii, and a
jugt atteutiun to the local peeiiliariticfl and products and employ-
ments of different States are absolutely indispensable qualilica*
tiona for a member of Congress. Yet it is obvious that if very
short periods uf service are to be allowed to members of Con-
gress, the coDtinunl fluctuations in the public councils, and Uis
perpetual changes of members, will bo very unfavorable to the
ac4)uirumcut uf the proper knowledge, and the duo application of
it for thv: ptililic welfare. One set of men will just have mas-
tered the necessary information, when they will be succeeded by
ft second set, who are to go over the same grounds, and tJien are
to be succeeded by a third. So that inexperience, instead of
practical wiiidom, hasty legislation, instead of solicr deliberation,
and imperfect projects, instead of well constructed systems, would
characterize the national government.'
§ 6U5. Congress has power to rrgulate oommerce with foreign
nations and among the several .States. How can foreign trade bo
properly regulated by nniform lawa without (I do not say some
acquaintance, hut) a large acquaintance with the commerce,
porta, usages, and regulations of furcigu states, and with the
pursuits and products of the United States? How eta trade bo-
twii-n Ihe different States 1)0 duly rugidatoti, without un accurato
cuuwiudge of their relative situation and elimnto and prmluc-
lons, and facilities of intercourse ?* Congress has power to lay
1XC9 and imposts; but how can taxes be jitdiciounly imposed
eud effectiTely collected, unless thojr ttt Kcoumraoddtcd to ttko
■ The FodaralM, Xo*. 68, H. ■ lUd.
VOL. 1.-20
450
CONSTITDIION OP THK UNITKD STATES. [BOOK in.
local circiunstaucea of the BOv«ral States ? The i>owor of taxa-
tion, evoD witli tb« purest aud bc«t iotentioiui, mii^t, witboat a
thorou;^ kiiowk-(l)rt' of the diversified intitrusis uf Iho States, bo-
oome a most upprt-ssiw mid ruinous eufnn« uf powur.i It is true
that diSiculticfs of this sort will occur more frequently in the first
opcrationa of tb« K*>vcnuuc&t thui afteru'mrdB.' But in a frruwing
community, like that of the Uiiit«d States, wLo«e pupulutlun
has alrt-udy iucrcaaod from three to tliirteen millions within furtjr
years, thorc must be a perpetual change of meaaur(>s to suit the
new cxiffcucics of agriculture, commerce, and manufactures, and
to insure the vital ol>jecl8 of the Oonstitutinn. And so far is it
from being true that the nntional government haa by ita famil-
iarity become more 8im|)le and facile in ita machinery and
opcmtioiis, that it may be aOirmed that a far more exatrt and
comprehensive knowledge is now neoecsarr to preserre ita ad<
JH8tment». and to carry on its daily operations, than waa rer|uired
or even dnmnied nt at its first institution. Its very success aa a
plan of government has contributed, in no small degree, to give
complevity to its trgiRlation. And the important changes in the
world rfuring its existence have required vorj- many developmeota
of its jmwers and duties which could hardly have occurred u
practical tmths to its enlight<^ned founders.
§ 606. There are other powers belon^n^ to the national 150T-
emment which require qualilicatioDs of a high character. They
regard our foreign intprcourso and diplomatic policy. Although
tlie House of Representatives does not directly participati! in for-
eign ni^otiations and arrangements, yet, from the necewarA' con-
nection between the sereral branches c^ public aETuirs, its co-
operation with the other departments of the government will be
often indispensable to carry them into full effect Treaties with
foreii^ nations will often require the sanction of laws, not merely
by way of appropriations of money .to comply with their stipula-
tions, but also to prorido suitable regulations to give tbem a
practical ojieration. Thus, a porcbaae of territory, like that of
Lonisiana, would not only require the House of Itcpresentativea
to rote an appropriation of money, and a treaty, containing
clousefl of indemnity, like Die British treaty of 1794, in Hko
manner require an appropriation to give it effect; but commer-
cial treaties, in an especial manner, would rciuirc many raria-
CR. IX.]
HOURS OP REPRESBNTATfTISB.
451
tiotiA and addilioiui to the exiating laws in order to ndjust thom
to th« i^'iienil syHtcm, and pi'oduc«, wtiero it is int«ndcd, a jiuit
rwiprocitjr.) It in hardly Doc««8srf to say that a oompet«iit
kiiour-ludfTD of thu law of nations in indiApt^unablc to every slates-
inun; uod that ignomnce may nut only involve; tlie nation in «ni-
barrnsxin)! euatrov(;r8it.-ii witli other nations, but may alxo inrolre
it in liiimiliutinK eucririccs. Cuut^rrHii alone id intniHtcd with
the jNiwur to decluni war. What wmild bo said of rcprcsenta-
tlTCB called upon to cxcrciuo this ultimate appoal of sovereignty,
who wore ignorant of Uio just rights and duties of belligerent and
neutral nations?'
§ 607. B«8idc«, tho whole diplomacy of the executive depart-
ment, and all thom* relations with independent powers wbidi
connect theniseUx-s wilh foreign intisrooursc, arc so intimately
blended with the proper discharge of legislative duties, that it is
impossible that they slioiild not be constantly brouglit under re-
view in the public debat«ii. They must frequently furnish matter
for censure or praifle, for accusation or vindication, for legisla-
tive checks or legislative aids, for powerful ap))eals to popular
lavor or popular resentment, for the ardent contests of party, and
' even for the grovcr exercise of the power of impeachment
§608. And this leads us naturally to another remark; and
that is, thot a due exercise of some of the powers confided to tho
House of Representatives, even in its moat narrow functions,
requires that the members should at least be elected for a period
of two years. The power of imjwaehment could scarcely be ex-
erted with effect by any body which had not a legislstivo life of
such a period. It would scarcely be possible, in ordinary casca,
to begin and end an impeachment at a single annnal session.
And the effect of change of members during its prosecution
would be attended with no inconsiderable embarrassment and
Inconvenicmie. If thv power is ever to be exert«d ao as to bring
eat offenders to justice, there must be a prolonged legislative
erm of ofTico, so as to meet the exigency. One year will not
linflice to detect guilt and to pursue it lo conviction.*
§ 609. Again, the House of R4>prenentative8 is to be the sole
judge of the elections of its own members. Now, if but one te-
pslative session is to be held in a year, and more than one cannot
1 The FxdniUat. Ko. S3.
■ ] EUiot'i DctatM, 31. lb. AoM»'a Sf^Mb.
■ IbU.
452
coNriTmmoK OP the unitbd statbs. [>ooe m.
onilinarilf be presiuned conrenteDt or proper, iipurioiu elections
cannot be inredtigated and annulled in time to have a due effect.
I'he Bitting ntember muHt either hold bin seat dnring the whole
period of the inveatigation, or be muflt be suspended dui-ing the
name period. In either case the public miscbief will i>e Tory
great. The unUomi practice has twen to allow the member who
is returned to hold his seut and vote until he is displaced b^ the
order of the IIouBe, after full investigation. If, tlien, a retnm
can be obtained, no matter bj what means, the irregular member
is »ure of huldini^ his scat until a lon^ period baa elapsed (for
that is indJsfH:iiH»blc to any thoruufib iuvestigution of facts aris-
. ing at great distanocs), and thus a rery pernicious CDCOurage-
mcnt is given to the U8C of unlawful mcaus for obtaining irregular
returns and fraudulent elections.'
§ 610. There is one other oonsidcration, not without its weight
in all (guestions of this nature. Where elections ore rery fre-
quent, a few of the members, as happens in all such assemblies,
will possess superior talents; will, by froqttent re-elections, be-
come moiubere of long stiindtng ; will become thoroughly masters
of tlie public business ; and thus will acquire a prejjonderating and
undue iritluence, of which they will naturally be disposed to avail
themselves. The great bulk of the House will bo composed of
new members, who will neccHSarily be inexperienced, diffident,
and undisciplined, and thus be subjected to the superior ability
and information of the veteran legislators. If biennial elections
would hnve no more cogent effect than to diminish the amount
of this inequality, to guard unsuspecting confidence against the
snares which may bo set for it, and t« stimulate a watchful and
ambitious responsibiUty, it would have a decisive advantage over
mere annual elections.'
§ 61L Such were some of the reasons which produced, on the
part of the framors of the Constitution, and ultimately of the
people themselves, an appruluition of biennial elections. Expe-
rience has demonstrated the sound policy and wisdom of the pro-
vision. But looking back to the period when the Constitution
was upon its passage, one cannot but be struck with the alarms
with which the public mind was on this subject attempted to be
> The F«a«nliM. N«. fiS.
* The Federals, So. SS. 8c« alM 1 TttckM** Bbck. Oomu. App. t» ; t Wibon'a
U« Ltctanm, ISL
CH. Ut. j
HOUSE OF BEPRESKNTATIVRS.
4fi8
disturbed. It waa repeatedly urged in and out of the Stat© con-
TfnlioDEi Uiat biennial elections were dangerous to the public lib-
erty ; and that Congrrsii might perpetuate itself, and reign with
abHolute power over the nation.'
§ 612. Id the nt-xt place, as to the qnalificationa of the elected.
rThe Coastitntion un this subject ia aa follows;' "Ko person
shall bo a rcprcBCntativo who shall not have attained to the agfl
of twenty>livo years, and lM%n seven years a citizen of the United
States; and who shall not, when elected, be on inhabitant of tlist
.State in which he shall be chosen."
§ 61.H. It 18 obvioiia that the inquiry as to the due qualifica-
tions of representatives, like that aa to the due qualifications of
electors in a government, is susceptible, in its own nature, of
'very different answers, according to the habits, institutions, in-
terrsta, and local peculiarities of different nations. It is a point
upon which a'e can arrive at no univerital rule which will accom-
modate itself to the welfare and wajita of every people, with the
same proportionate advantagea. The great objects are, or ought
to be, t<» secure, on the part of the representativas, fidelity, Hound
judgment, competent information, and incorruptible indejK'nd-
QDoe. The beat mixlea by which these objects can be attained
are matters of discussion and reasoning, and essentially depend-
ent UjMin a large and enlightened survey of the human character
and paaeions, aa developed in the different stages of eirilixed
society. There ia great room, therefore, for divcrsitifS of judg-
ment and opinion upon a subject so comprehensive and \-ariablo
in its elements. It would be matter of surprise, if doctrines
I essentially different, nay, even opposite to each other, should
[fiot, under such circumstances, be muintuined by political writers
■equally eminent and able. Upon questions of civil policy and
the fundamental structure of gorommenta there has hitherto been
too little harmony of opinion among the greatest men, to encour-
age any Ii0|)0 that the future will be leas fniilful in dissonances
Ltiian the past In the practioo of goreraments a \erf great dl-
•Tcrsity of qualiHcations has \>t^n insisted on as prerequisites of
office; and this alone wotild demonstrate that there was not ad-
mitted to exist any common standard of aupcrior excellence
, adapted to all ages and all nation*.
§ 614. In Great Britain, besides tiumo negative qualtficatioM
■ I ElUot't DftMtOk 39,37, 3«, 43; Id. «T. * Art. 1, | ^ pMagnph 3.
454
COKSTITOTION OT THE UXIILD BTATIS, [BOOK HI.
irbich are founded in ueagc or positive Uw, bu«Ii m the exclusion
of iicrsons boldiiig oortaia oSiceft and pensions, it is required
that eveiT mentber for a count}-, or kui.^'lit of a nbire (as be ia
technically called), shall bax-o a clear estate of freehold or copy-
hold to the value of X600 sterling iMir annum; and cvt-ry member
for a city or borough, to the value of X300, except tlie cldttit sons
of peers, and of pcreonx qualifii-d to Iw knights of shires, and
except the mfmbent of the two universities.'
§ 615. Among the American colonies antecedent to the Revo-
lotion, a great dtvei-eity of qtiaUficatious existed; and the Stat«
oonstitutiou8, 8ubso(|iiently foi-mod, by no moons lessen tliat di-
versity. Somo insist upon a freehold or other property of a oer-
tdiu raluc; others require a certain period of residcnee, and
oitixcusbip only; othei-s re<iuire a freehold only; others a pay-
ment of taxes, or an equivalent; others, again, mix up all the
Tarious qualifications of property, residence, ciliutnsbii^, and
taxation, or substitute some of tJiese, as eipiivalenia for others.*
I 616. llie existing qualifications in the States Iwing then so
various, it may l»e thuuitht that tbe best eoorse would have been
to adopt the rules of the States resi«?ctively, in regard to tlie
most numerous hrnnch of their own legislatures. And this
0001*86 might not have l>cen open to serious objoctioits. Dut, as
the qualifications of memlwra were thought to be less carefully
defined in the State constitutions, and more susceptible of uni-
formity than those of the electors, the subject was thntight pro]>er
for regulation by the convention.' And it is observable, that the
positix'e qualifications are few and simpla They respect only
age. ciliicnship, and inhabitancy.*
§ 617. First, in n'gard to age. The representative must have
attained twenty-Svo years. And certainly to this no reasonable
objection can be made.' If experience or wisdom or knowledge
be of \'alue in the national councils, it can scarcely be pretended
that an earlier ago oould afiford a certain guaranty for either.
That some qualification of age Is proper, no one will dispute;
Ko one will contend tliat persons who are minors ought to be
eligible ; or that those who have not attained manhood, so as to
> I Black. Ceoiin. 17«. 8m ( InittL 46 to «L
* Dr. Utbar'i KacycL A»rtkui, an CtaMaKnu </ On OkUei AitM.
* Th* FahnHrf. No. »G. * I Tndier'i Blkdt. OoMOk. AFt>- W-
* 1 Tucktt's Blxk. Cuiiim. App. SIS, SU ; 3 U'Oioa'i L*« Uct. 139, IM.
CH. IX.]
BOUKS OP BCPBCJENTATIVBL
be entitled b; tlie common law to dispoBe of tbeir pcrsoDft or ca-
ttatea, at their ova will, would be lit depoaitariea of the otitlioritj'
to diHjMMu; of tile rifihta, persons, and propertjr of others. Would
the aicrv attainment of twcntj'-onc years of ago be a more proper
qualiliratioa? All just reasoniQ;; would Im; against it The
clmractera and pnncipW of youuK men can scarock bo under*
stood itt the momt-nt uf their majorit}'. Ihay are then new to
the rig^lila of iiclf-guronimvnt, warm in thoir iiassiona, ardent in
thi'tr oxpcctiittunis and just vscAping from pupilii^ are strongly
tcmpti-d to diHvard the Ioimoiu of caution whieh ript-r years in-
CulcuU.-. What they will beeouio rcmuius to he wx-u. luid four
yoani beyond that period Es but n very short space to which to
try tJicir vlrlmv, develop tlivir talents, cularfcc their rcsouron,
and friro them a pnctical iiisigbt into tlic buitiuetis of lifo tdo-
quato to tlicir own immediate wants and duties. Can tlic inter*
Mts of otiiers be safely confided to those who have yet to Icurn
'liow to tnkc cai-o of t]kcir own? The British const) lotion lias,
indeed, prondod only for the members of tlic House of Conunons
not being minors;* and illimtrioiia iMtonoCfl havfi occurred to
show tlutt great Btatosmen may bo formed even during tlieir mi*
Bority. But such Instajices are rare; they are to be looked at as
prodi^es, nttlier than as examples; as tlio extraordinary growth
of a peculiar education and character, and a hutbed precocity in
a monurehy, ratlicr than as the sound and thrifty growth of tho
open air. and the bracing hardihood of a republic In the ood-
vention this qiuilification as to age did not pass without a stnig*
gle. It was originally carried by a vote of scTcn States against
three, one being divided; though it was ultimately adopted with-
out a dirisioD.' In the Stato conventions it does not acorn to
bave formed any important topic of debate.*
> 1 BWk. Comm. IBl, ITS, 17a ; 4 lutiL U, IT.
■ Jtomal ti CtmnDlion, Jum 21, p. 148 ; Id. Aug. 8, p. 23S ; 4 KUM** MMm
(TateC* HiiiiitM). 8«.
■ Lord Cak* hw wUk Miuli pwriljr iiHn«nrt*iI tlw |>«p(r ^uaUGailiaiu of ■ Parii*>
liMiil ■■II. (Inwlnx tba iwwnMMtw bom tlu ptofwitiM of U» drphant. Fint, thai
h* thanU \m wltbnnt |pll ; Uiat la, wlthoat nuJiot, nnoM, liMl, tuA aawj. B*(««dl]r.
that ha ibnalil ba eocuunl, inll>xibl«, mil nol to Iw b»«r«d or Uinied Inm tli* titfiU
dtbir tot Inr, ixwml, or (sTor. uor in Jii4gMf«t mprat (Knon*. Thinlljr, th*t h«
AonU be«( ■ npv nteawry. Ilwt, rtoMiabcviMg |i«41i |«al, be la^ilit nrm<nher AitigfOt
to Mm*. PounJily, tbst thongli be be o( Um grwtnt itmigth uid vodMrtMiiUn^ jrtt
b*b«Mti>U«u(l ip) la (mn}iuilat. And, UUiIy, Uut bo Iw phlUiiUmifc, ihowlng tha
my t« avcty man. 4 IiuUL S. WbaMvar ona nu; now tUiik «f lUa qulM aaakB^i
456
oossTrttmos of thb dkitkd sTAira. [book in.
§ 618. Secondly, la regard to citizenship. It is required theti
the reprcAcntutivu tiliall huvc been a citizen of the United States i
Bcvfn yt>ftr». Upon the propriety of esoluding aliens from eligi*
bility, there could scarcely be any room for debate; for there
could be no security for a due administration of any government
by persons whose interesttR and connections were foreign, and
who owed no permanent allegiance to it, and had no permanent
Btake in its measures or operations. Foreign influence, of the
most corrupt and mischievous nature, could not fail to makit tta
vay into the public councils, if tiiore waa no guard against the
introduction of alien reprcscntatiTes. * It has aoc»rdin);ly bi-cn
a fundamental policy of most, if not of all, free states to vxcludc
all foreigners from holding offices in the state. Tlio only prac-
tical question would seem to be, whether fureigiicni, even after
naturalization, should be eligible as rL-prcscutatives, and if so,
what was a suitable period of citizenship for the allowance of
the privilugc. In England, all aliens bom, unle^ imturalised,
were originuHy excluded from a scat in Parliament; and now,
by positive Icffistatiou, no alien, though naturalized, is capable
of being a member of either house of Parliaiuent* A. different
oouniQ, naturally arising from the circumstancefl of the country,
waa •do|>tcd in (be American oulunies autoctMlcnt to the Rovtilu-
Uon, with a vivw to invite cmi^utiona and Bcttlcments, and thus
to facilitate the cultivation of their wild and waste lands. A
similar policy Inul since pervaded the State governments, and
Iwd been attend<.-d with so many advantagvs, that it would have
l)«cn impracticablo to enforce any total exclusion of naturalixed
citiietts from oflioc. In the convention it was originally pro-
posed that three years' citizenship should constitute a qualifica-
tion ; but tiiat was exchanged for seven years, by a vote of ten
States to one.' No objection seems even to have been suggested
against this qualirication ; and hitherto it has obtained a general
acquiescence or approltation. It certainly subserves two impor-
tant purjKKses: 1. That the constituents have a ftill opportunity
of knowing the character and merits of their representative;
Uhm qtuliliM would not, in OUT 4*7. U thoNght • bad «nB(ntion of tbe pnpor qoali*
tim of ■ gooit taodem Mtwbcr «f PatUuMat cr OMgtf^
I Tbe Foitnlul. Ko. CS.
* ] Muk. Conm. 83, 175; t la*L IM.
* Joyntl of th> CoBVMiUoa, 8 Aaput, tn, aU.
CB. IZ.]
BODSE or BEPBESEM^TITBS.
467
2. That thfl rcpreat-ntative has a like opport^mity of learning the
character and vraiits aiid opinions of bis constituents.'
§ 619. Thirdly, in ivgard to inhabitancj. It is required that
the representative ohall, when elected, be aD inhabitant of the
^Uit« in which he shall b« cho«cii. The object of this clame,
doubtless, was to secure an attachment to, and a just representa*
tiun of, tbe interests of tlie State in the national councils. It
was supposed that an inhabitant would feel a deep«r concern and
po8«e88 a more enlightened riev of the varioiu interests of his
constituenta, than a mon^ stranger. And, at all evcntn, be would
generally poBMSs more entirely their sympathy and confidence.
It is observable that the inhabitancy required is within the
State, and not within any particular dintrirt of the Ktatei, in
which the nieniWr is chosen. In Kngland, in former times, it
was required that all the menibers of the House of ComnuMts
should be inhabitants of the places for which they wer« chosen.
But this was (or a ton^ time wholly disregarded in praetjce,
and was at length repealed by statute of 1-4 Geo. 3, ch. 68.' This
circumstance is not a little remarkable in parliamentary histor)-;
and it establishes, in a rery striking manner, how little mere
theory can be regarded in matters of government. It wait found
by experience that boroughs and cities were often bettor repre-
sented by men of eminence and known patriotism, who were
strangers to them, than by those choeon from their own vicinage.
And to this very hour some of the proudest names in English
hiatorv, as patriots and statesmen, hare been the reprcsenlatjres
of obscure, and, if one may so say, of ignoble borouglia.
§ 620. An attempt was made in the oonrention to introduce
B quail ficat ion of one year's residence' before tbe cI<.'Ction ; but !t
failed, four Slalcs voting in favor of it, six against it, and one
being divided.* The omission to provide that a siibsequent non-
refiidonec shall be a vacation of tbc seat, may in some measure
defeat the policy of tlie original limitation. For it has happened,
in more than one instance, that a member, after Ills election, has
removed to another f^tiite, and Urns censed to have (hat intimate
intercourse witli, and dependence upon, his constituents, upon
whicli so much value has been placed in all the discussions on
this subject
> S Wibcm'i Uw Ltctnrt*. 141.
■ 1 BUek. Cmmd. 175 ; 2 WIUm'* Law UcL 141
• Joanul of OMnMin. 9 Aw^ PP- ^*- >^
4fi«
CONSTETL-TION OP TB2 VHITED SIATGa. [BOOK IB.
§ 621. It is obsflrrabte that no qualification, in point of estate,
lias i>ei^ii required on tlie part of mMnbc-ns of the House of fiepre-
WQtatiTea' Y«t auch a qu&liKcation i» insistod on by a consid-
eralile number of tho Statt^ii as a quHlificatiun fur the popular
branch of tho State icgiBlaturc.>{«) The probability is, that it
vas not incorporutiid int« the Coiutitution of the Cuiou, from
this difficulty of framing a provision that would be gcnemlly
acceptable. Two reasons have, however, been assigned by u
Ififtrned vomuiuatAlor for the omission, whicli deserve notice. ]
Finit, thut in n representative govemmeut the people hare an
undoutiti'd rijfltt to judge for themselves of the qoalificatioD of
their ropi-c»entative, and if, in their opinion, his integrity and
ability will supply the wont of estate, there is better reason for
contending that it ought not to prevaiL Secondly, that by re-
quiring a property qualiflcatitHt, it may happen that men the
best qualiRed in other reapet-ts mtu;ht bo iucuf>3(;itati'd from sorr-
ing their country.* Tliere ia, doubtless, weight in each of these
considerations. Tho lirst, however, is equally applicable to all
sorts of qunlificationH whulaoevcr, and proceeds upon an inad-
missible foundation; and that is, that the society has no jnst
right to regulate for the common good what a porticm of the com-
munity may doom for their special good. The other reason haa
a better foundation in theory, though, generally speaking, it will
rarely occur in practice. But it goes very far towards overturn-
ing another fundamental guard, which is deemed essential to
public liberty; and that is, that the representative should have a
common interoat in miiasures with his conatttuenta. Now, the
power of taxation, one of the most delicate and important in fan-
man society, will rarely be exerted oppressively by those who ore
to sliare the common burdens. The possession of }>roperty has
in this respect a great value among the proper qualifications of
a representative, since it will have a tendency to check any un-
due impositions, or sacrifices, which may oijually injure bis own
as well us thcira.*
§ 6'22. In like manner there Is a total absence of any qualifi-
cation founded on religious opinioits. However dutirablo it may
■ Joonial of CiMinntlun. Sfl Jiiljr, fp. SM. 901; Id. It : Id, S41. SIS.
* Dr. Lisbtc'i Eiicyvl. AnwicuBi, art. Ontlit»ilitmt «/ Ou Omiud Stau^
* 1 Tnditr'* Bbrk. Comm. Ap[i SIS, 313 g 1 fflliot'* Dttata^ GS, U.
* 1 Tuck. BWk. decant. App. HX 319.
\m) Tkl* i* M) longsr trae.
PH. IX.]
BODSB OF BCPEeSENTATIVEa.
459
bo that every g:overQmetit should be adminifltcred by those who
have a fixed rolipiotui belief, and feci a deep reHpouflibilil}' to an
infiuiU'ly wis* and ftcmwl Brin^, and liowcvcr fitronR may be our
pcrsuaitiuo of the cvorlaotiiiK value uf a belief in ChristiaDitjr
for our prcneut m well as our inunortnl welfare, the history of
ttu! world lia« bIiowd the extrem« dun)!Cra ax well as difKcultici
of ooiiiicctiiig: th« eivil power with rvlij^oiu opiuiuiis. Half the
ulamitics with which the human raoc have been seout^ed have
ari»«u from the union of Church aiid State ; and the jtcoplc of
America, above all othera, have too lately fiartjikctt of the tcr-
Irors and the safTcrtngs of jioraecution for conscience' sake, not
to feel an excwMive repu^ance to the introduction of religious
tests. Experience haa dcmonjilrated the folly as well as llie in*
justice of exeliutiutu frum office, (uuaded u|>on religious opinions.
Th«y faav« a^^avatcd all other evils iu the political organization
of societies. Tliey earr}' in their train discord, oppression, and
bloodshed.' They perpetuate a iHivuife ferocity and itisensibilit/
to human rights and sufferings. Wheni\-cr they have been abol-
Uhed, they have introduced pcjice and moderation and cnliKht-
oned k-|;islal ion. Wherever llicy have been pcrpciuutvd, they
hare always checked, and in many eases have o\'«rturned, all
tlie securities of [lublie lil>erty. The rifrfit to burn heretics sur-
vived in England almost to the clotse of the reign of Charles the
Second;' and it haa bc«n asserted (but I have not been able to
ascertain the fact by c.\amiaatiuu of the printed jounial») that
OQ that occasion the whole bench of bishups voted a^inst tlto
repeat We all know how slowly tlte Itoman Catholics ha^'e re-
oorerod their just rights in England and Ireland. The triumph
has been but just achieved, after a most painful cont«rst for a
half-century. In the Catholic countries to this very hour, Prot-
estants are, for the loost part, treated with a cnld and reluctant
jealoiiiiy, tolerated, perhaps, but never cheriahe<I. In tlie actual
situation of the Uuited States, a union of the States would have
been impracticable, from the known diversity of religious fiecta, if
onythin;; more than a simple l>elief in Christianity, in the most
general form of e\preRition, had )>cen required. And even to this
some of the States would have objected, as inconsistent with the
fundamental policy of their own charters, constitutions, and laws.
Whatever, indeed, may have been the desire of many [x-mons of
' 8m I BImL Cmbol 41, ii, ta, 47. < 4 Bkck. Oooua. 4B-
460
CONSTlTOnOK OP THB XIXITED STATES. [bOOE OI.
a deep religious focllug to hnvc embodied some provisjon on this
Rubjcct in the Coimtitulion, it may be safely Rflirnied that hitherto
the a\m^nci: has uut been felt tus nii evil ; and that while Chris-
tianity cuiitinueti to be Uie belief of the enlightened and viae and
pure among Uie electors, tt is impoanible that inJidelity can find
an easy home in tJie House of K«]>reB«ntativea.
§ 62S. It has been justly observed that under tJie reasonalile
quail ticationft established by tlie Constitution, the door uf tbia
jwrt of the fedora! government is open to merit of every descrip-
tion, whether native or adoptive, whether young or old, and
witlioiit regard to poverty or wealth or any particular profeesioa
of religious faith.'
§ 624. A ((ucstion, howerer, han been nup^gieated npon this sub-
ject which ought not to l>e passed over without notice. And that
is, whetltcr the States can superadd any qualiScationa to tliOM
preserilx-d by the Constitution of the United States. Tlio laws
of some of the Stater's have alivady required that the reprcsento-
tire should be a freeholder, and be resident within the district
for which he Is chosen.' If a State legislature has authority to
pass laws to this effect, they may impose any other qualihcationB
beyond those provided by the Constitution, however inoonven*
ient, rcatrietivc, or even mischievous they may be to the iutcn?!St«
of the Cnion. The legislature of one Stut« may require that
none but a Deist, a Catholic, a Protestant, a Calvinist, or a
Universnlist shall be a n-pn'sientativc. The legislature of an*
other Slate may require that none shall be a representative but
a planter, a farmer, A mechaniv, or a manufacturer. It may ex-
clude mcrdiants and divines and physicians and lawyen. Ad*
other legialatnre may require a high moneyed qualification, a
freehold of great value, or [tersonal estate of great amount. An-
other legislature may require that the party shall have been bom
and always lived in the State, or district, or that he shnM I»e an
Inhabitant of a particular town or city, free of a corporation, or
an eldest son. In short, th«ro is no end to the raneties of qual-
ifications which, witJtout insisting upon extravagant cases, may
bo imagined. A State may, witli the solo object of dissoh'ing^
the Union, crcat« qualilications bo high and so singular that It
shall become impracticublu to elect any rcproAentative.
> Tl>« F(d«i>li>t. Vo. G2.
* 1 TnckM'a Bhck. Coiiun. A^ StlL
ca. tx.]
HOOSS OF RBPRBSENTATIVES.
461
§ 62S. It would mem but fair reasoning, upon Uie plainest
principles of intvrprctution, tliat when the Constitution entab-
lisbed certain qualificationa aa niicctuuiry for olTice, it meant to
exclude all otheni as prerequisites. From the vcrj nature of
8u«h a proviaiuu, the nfTinnntion of the»e quuliiicationB would
seem to imply a negative of all others. And a doubt of this sort
aeeniB to hare pervaded (he mind of a Icamcd commentator.' A
power to add new (jualificationg is certainly f^ui vak-nt to a power
to vary them. It adda to the aggregate what changes the nature
of tlie former requisites. The House of RepreseDtatircs seems
to have acted upon this interpretation, and to hare held tliat the
State legislatures have no power to prescribe new qualifications,
unknown to the Constitution of the United States.* A celebrated
American ntatesman,' however, with bis avowed devotion to
State power, haa intimated a contrary doctrine. "If," says he,
'^whenever the Constitution assumes a single power out of many
which belong to the same subject, wo sliould consider it as as-
suming the whole, it would vest the general government with a
mass of powers never contemplated. On the contrary, the as-
sumption of particular powers seems an exclusion of alt notss-
tumed. This reasoning appears to me to be soimd, but on so
recent a change of view, caution requires us not to be over-confi-
dent"* Ho intimates, however, that unlcfls the caae be either
clear or nrgent, it would be better to let it lie undisturbed.*
§ 626. It does not seem to have occurred to this celebrated
stntcsman, that the whole of Uiis reasoning, which is avowedly
founded upon that amendment to the Constituliou which pro*
vides that "the powers not delegated nor prohibited to the States
are reserved to the States respectively, or to the peo|)le," proceeds
upon a basis which is inapplicable to the case. In the first place,
no powers could be reserved to the States, except those which
existed in tlw States btrforo the Constitution was adopted. The
amt-ndmi-nt dues not profess, and, indeed, did not intend, to
confer on the States any new powcre, but merely to reserve to
tbem what were not conceded to the goremment of the Union.
Now, it may properly bo asked, where did the States get the
power to appoint representative in the national government?
1 1 Tncker'a BlKk. Conun. App. S13.
* JtCtnoo'* Comap. 2S9.
• Mr. J«AtMs.
* i Jtflknoa'a Com^ tn.
432
CDHSTITirnOK OF THB UXITED BTAnH. [BOOK III.
Wait it a power that existed at all before the Constitatton
adopted ? If derived from the Conatitutioo, must it not be de-
rived exactly under the qualificatiuiu eatablirfied by th« Conati-
tution, and nont.* others? If the Constitution h»» delegated ao<
power to the States to add new quulifR'ntions, bow can tliey ctaimf
any sacb power by the mere adoption of that instrument, which
they did not before poexess ?
§ 627. The truth i«, that the States can exerciM no powe
whatsoever which exclusively spring out of the existence of the
national ^vemment, which the Coostitutinn does not dele
to them. Tliey have jast M much right, and no more, to
scribe new qualiHcations for a representative, as they have for a
President. Kach is an officer of the Union, de^i^inc hia powers,
and riualifications fn^im the Oon-slitution, and neither created by,
dependent apon, nor controllable by the States. It is no origi-
nal prerogative of State power to appoint a reprwientative, a
senator, or President for the Union. Those ofticera owe their
existence and functions to the united voice of the wfaolo, not of a
portion of the people. Before a State can assert the right, it
must show that the Constitution has delegated and rcco^zod it;
Ko State can say that it has reserved what it never possessed.
§ 628. Besides, independent of this, there is another funds-
mental objection to the reasoning. The whole scope of tfao argu-
ment is, to show that the legislature of the State has a ri^t to
preserilte new qualifications. Xow, if the Stata iu its political
capacity had it, it would not follow that the legislature po
it. That must depend upon the powers conTidud to the Stata^
legislature by its own constitution. A State, and the legislature
of a State, are quite different political beings. Now it would be
very desirable to know id which part of any State constitution
this authority, exclusively of a national character, is found dele-
gated to any Statu legislature. But this is not all. The amend-
meat does not reserve the powers to the States exclusively, as
political bodies, for the language of the amendment is, that the
powers not delegated, Ac, arc reserved to the States or to the
peopfe. To justify, then, the exercise of the power by a Slate, it
is indispensable to show that it has not been reserved to the peo-
ple of the Stale The people of the State, by adopting the Con-
atitutioo, have declared what their will is, us to the qualifications
for office. And here the maxim, if ever, must apply, erpr**no
CH. IZ.]
HOCSK or HKPEESENTATlViU.
469
uKi'iu ett fxelfuto a/fmiuL It might further be nrged, that th«
Cuimtitution, being the act of the whole people of the Uiiiti'd
Stnt<)8, foniicd aiid fashioned according to their own news, tt is
not to be nsHiimcd, us the Ixwis of any rwifloning, that they hare
givvti any ooiitrul over the fimctionariL-H on-atod by it to any
8tat«, beyond what ift found in the text of the inatrument,
Wlicu such a control is assorted, it is inutU-r of ))roof, not of aa-
snniption ; it iit niatler to be estAblishud, us of rit^bt. and not to
be exercised tiy inturpation, until it is displaced. Th« burthen
of proof in on the State, and not on the goremiaent of the Union.
The affirmative is to be established; the negative is not to be
denied, and the denial taken for a oonccnion.
§ 629. In regard to the power of a State to prrncribc the quali-
fication of inhabitancy or rcaidcnoe in a district, as an additional
quali Heat ion, there in this forcible reason for denying it, that it
18 undertaking to act upon the very qualification pi-eacrihed by
the Constitution, as to inhabitancy in the State, and abridging
its operation. It ia prcviscly the same exercise of power on tho
part of the States, as if they should prescribe that a rcprcHeata-
tivc should ho forty years of ago, and a citieeu for ten yours.
In each case, tho Tt>ry qualification fixed by tho Constitution ia
completely evaded and indirectly abolished, (a)
§ 630. The next clause of tho second section of tho first arti-
cle rcH]K>ets tho apportionment of the representatives among the
States. It is as follovrs: "Representatives and direct taxes sliall
he a])[>ortionod among the several States which niiiy be included
in this Union, according to their res|)cclivc mnntxTs, which shall
be determined by adding to tho whole number of froc persons,
including those bound to service for a term of years, and exclud-
ing Indians not taxed, three-fifths of all other persons. The
actual enmneralioQ shall bo made within three years after the
first meeting of the Congress of the United States, and within
every sutisequent term of ten years, in such manner as they shall
by law direct 1'he niunber of representatives shall not exceed
one for every thirty thoimand ; but each State shall have at least
one representative. And until such enumeratimi shall bo made,
(a) It k now nntvimll; oMmdMl that
• Suu nuiiiol pTvMribt iiHmciuioiM for
monban «f Co^na^ or ntmblkh dl»-
•btthio*. Tbiwholamtgcct Ubtfoad tlu
■pbfl* «f tt* povvf*. CotifrMD hM ■]•
mjr* dlatgudid fiuta nfoUUoai M tba
464
coKsrmmoK of tub dkited states. [book in.
the State of New Hamiwhire shall bo entitled to choose thfe^
MuftSKchiwetts eight, Rhode Island and Providence Ptant«tions
one, Connecticut fire, New York «ix, New Jeraev four, Pcnnarl-
Tania eight, Delaware one, Marj-land sis, Vir^nnia ten, Aorth
Carolina Kve, South Carolina five, and Georgia three."
§ tiSI. The first apportionment thus made, being of a tern;:
rarj and fugacious character, requirea no commentary.' Tbo-"^
basis assumed was probably very nearly the eame which the
Constitution pointed out for all future apportionmento, or, at
least, of all the free persons in the States.*
It is obvious, that the question, how the apportiooment should
be made, was one upon which a considersMe diversity of jnd
ment might, and probably would exist Three leading priocipl
of apportionment would at once present themselres. One was tQl
adopt the rule already existing, under the confederation; that is,
an e<iuality of representation and rote by each State, thus gii
each Stale a riglit u* send not less than two, uor more than i
representatives, and in the determination of qneations each .
to have one vote.' This wonid naturally reecive en
from all those who were attached to the confederation, and
ferred a mere league of States to a gorenunent in any
national.* And accordingly it formed, as it should seem,
boaia of what was called the New Jersey Plan.* This rule oil
apportionment met, however, with a decided oppocitiaD, and was]
negatired in the convention at an early period, aerea States]
voting against it, three being in its favor, and one being dirided-'l
§ 682. Another principle might be to apportion the repreaen-f
tati<»i of the States according to the relative prv^rty of each,
thus making property the basis of reprenentatiao. This mighfe
commend itself to aome persons, hecaose it would introdoee •'
aaltttary check into the legialature in regard to taxation, by se-
curing, in sooie measure, an equalitatjaa ot the pablic burdeat^
by the voice of those who were called to Eire most towards
> Jon. of OMiMlka, lOtli H}j, in. IM, I«7. in. 173. ITS, ttC
• 3«mt. at OmMdoA. IS». mm. But m thi Mmlbt, So. tS.
> OmMbmHm, Alt. a.
• lornn. U Om-nmtkm, 111. 1U. li».
• Mr. FutBODD't Pluw Joan. oT C-janmtiim. US ; 4 Dlkt^ IMHm (TaM'*
10na>n|.7*{M.81; Id. 107 to 11); Ufli 3 Pbk. ID«. SB, fXR, sa.
• Je«ia.«(OnT«t)««,UtkJ<UM, tlL 8« ate Id. isa; 1» : i BBaTi DthMa
(TmWsMiaatMka.
CH. tX.]
H0D8E OP nEPBESENTATlTEa.
465
common contributions.* Thnt taxation ou^t to go hand ia hand
with represcntatioo, bad been a favorite tlicory of the American
people. Under the confederation all the common expenses were
required to he borne hy the Slates in projwrtion to the value of
the land within each State.* But it has been already 8«cn that
tliis mode of contribution was extremely diRicult and emharraas-
ing, and unsatisfactory in practice, under the confederal ion.'
There do not, indeed, seem to bo any traces in the proceedings of
the convention, that this scheme had an exclusive influence with
any persons in that body. It mixed itaelf up with other consid-
erations, without acquiring any dociaive preponderance. In the
first place, it was easy to provide a remedial check upon undue
direct taxation, the only species of which there could be the
slightest danger of unequal and opprcssivo levies. And it will
bo seen that tliis was sufficiently provided for by declaring that
representatives and direct taxes ohould bo apportioned by tho
same ratio.
§ 63S. In the nest place, although projwrty may not bo directly
aimed at as a basis in the roprcftentati»u provided fur by the
Coostitulion, it cannot, on tho other hand, be deemed to be to-
tally excluded, as will presently bo seciL In tJio next place, it
is nut adiiiitlRd that property alone can, in a free goveminent,
safely bo rt-litd on as the boIo basis of representation. It may
be tme, and probably is, that in tlie ordinary course of affairs, it
is not tho inten-st or policy of tho«o who possess property to op-
press those who want it. But, in every well-ordered common-
wealth, persons, as well as property, should possess a just share
of influi'Doe. The liberties of the people are too dear and too
sacred to be intrusted to any persons who may not at all times
have a common sympathy and common interest with the people
in the preservation of their public rights, pririleges, and liber-
ties. Cliecks and balances, if not indispensable to, are at least
a great Clonse^^'ative in the operations of all free govemmonta.
And, perhaps, upon mere abstract theory, it cannot be justly
> 1 EDiot'a DcUtM <T(d«*( UiDVlw), W, S9 ; Jouni. at ConwotloD. lltk Jdm^
111 i Id Mb Jnlr. IM ; Id. llth Jnlf. IM.
* Canf«l*n>tia«, Mt. 8.
* JconMli of (VinptM, ITth F*b. 17S3, ToL 8, |l lt9 to p IS); td. »th Sapt-
17SS, Vol. 10. p. MS i I(L ISlh A|>rf1. 1783. Vol. «, p. IM ; 1 Hlkrt'* HtUxe*. M ; 2
EUiot't Oot«M. ns t 1 Tadc. Black. Comm. App. tU, SS0, 2*i to !M ; Tha Fcdcf
■IK No. » ; Id. yo. n.
VOL. f. — 80
46e
eojrarmmos of thb mnriD STATn. [book in.
kffinned that either penoas or property, nomberB or wefthh, eaa^
uielj be trusted, u the final repoMtaries of the del^Bt«d
of go7enimcnt> By apportioning influence unoag each, vifi*
lance, cautitm, and mutual checks are natnnllf introduced and
perpetuated.
} 6S4. The third and retnaininie principle was to apportic
the reprceentativps amooK the States accordii^ to their relatire'
nnmberB. This bad the recotomendation ot great simplicitr and
nmformitT ia its operatioa, of being genenllv acceptable to tite
people, and of being low liable to fmod and evaaian than any
other which couM be devised.' Bceides. »lthoa|^ wealth and'
property cannot be affirmed to be In different States exactly in
propottion to the numbeta, the; are not so widely scparatnl trom
it as at a hoAty glanoc mi^t be UitagiDcd. There is, if not a
natnnl, at least a veiy common conneotioo between them, nod]
pertiaps an apportionment of taxes according to nnmbera Js
equitable a rule for contributions according to relative wealth attj
any which can \>e practically obtained.*
S 685. The scheme, therefore, under all the circumstances, of
making numbers the faasis of the representation of the Union,
seems to hare obtained more general favor than any other la the
Gonrention, becanse it had a natural and universal oofutection
wiUi the rights and liberties of the whole people.*
$ 686. But here a difficult of a very serioos nature tmat,
Ttiere were other personii in several of the States than those who
were free. There were some peraoos who were bound to sernee
for a term of years, though these were so few that Uiey wnnld
scarcely vary the result of the general rale in any important de- 1
gree. There were Indiana also in several, and probably in most,
of the States at that period, who were not treated ns citicena,
and yet who did not form a part of independent communities or
tribm exerciaing general sovereignty and powers of govemmoit^
within the boundaries of the States. It was oeeessary, therelbr^
to provide for those cases, though they were attended with no
practical difficult}'. There oeema not to have been any ob}ection
in incloding in the ratio of representation persons bound to set^j
I TiM r«d«nE*t. Ko. U. *U.
* tht PofanUit, ^'o. U -. BMoh« U OnvMK ISth April. 17S3 (8 JMinwib <i
CH. IX.]
■OOn OP ai!»>RKSENTATirKS.
467
Tice for a term of years, and in excluding IndiaM not taxed.
The real (and it vm a very exciting) controvcrey wan in regard
to lAavMi, whether they nhould be included in the enumeration or
not* On the one hand it was contended that alavea were treated
in the States which tolerated slavery as property and not as per-
sona.' Tbcy were bought and sold, devised and transferred, like
any other property. They had no civil righls, or political priv-
ileges. They had no will of tlieir own, but were bound to abso-
lute obedieuec to their masters. There was then no more reason
for including tliom in tlio census of persons tlian there would bo
for including any brute aniiuals whatsoever.' If they were to
be rcprcMnted as property, the rule should bo extended so as
to embrace all other property. It would lie a gross inoquality to
allow repreaentation for slaves to tJie SonlJicni Kiates, for that
in cCTeei would be to allow to their nianters a predominaAt right
founded on mere propBrty. Thus, five thouRnnd free persons in
a slave State might ptKiiujsa the same power to chonae a represen-
tative as tliirty thouaand free persons in a non<BUvebolding
State.*
§ 637. On the other hand it was contended that glares are
deemed persons as well aa property. They partake of the qoali*
ties of both. In being compoll«i to labor, not for hiujself, but for
his master, in being vendible by one master to another, and in
being subject at all times to be restrained in his liberty and chas-
tised in bis body by the will of another, the slave may appear to
be degraded from the human rank and classed with the irrational
animals which fall nnder the denomination of property. But in
being protected in his life and limbs against the violence of
others, even of the master of his labor and liberty, and in being
punishable himself for all violence committed against othcra,
the slab's is no less evidently regarded by law as a member of the
society, and not as a part of the irrational creation, as a moral
person, and nut as a mere article of property.^ The federal
Coustilutiou shotild, therefore, view tliem in the mixed character
I i Pltk. Hirt. 193 to tU.
* TtM rolcnUit, Sol «4 : 1 EUiaft DoImcm, M to«0 ; U. W. tXX U* i i Elltot'*
,D«katM (Murtla't Aiinm], ».
* 4 KlUoft \hUlm |r*tW« Uin«tM), «» ; 14. M.
« i Elliol'i IMmtm iMutin* A<ldn>), St : Id. O'aU'f WiratH), M
* The FcdciaUit, Ko. H j 1 BUotti Dcbatw, HI, 213.
468
CONSTITCTION OF THE tTNITBD STATtS. [BOOK IH.
of persons and propertv, which wa« in fact their true obaract«r.
It ia tnte that slaves arc not iDclnded in the eatimate of repre-
fientativca in any of the l*t«twt potwessing them. Thej neither
vote themiK-lveB nor incrciuM; the vot« of their masters. But it
ia also trtw that the Couatitution itself doe» not proceed upon
any ratio of merely (]ualifivd voters, cither ua to reprcaentativca
or aa to electors c^ them. If, therefore, Uioeo who arc not votora
are to be excluded from the ennmeration or'cenaua, a similar in-
equality vill exist in the apportionment amonff the Statea. For
the representatives are to be chosen by those who are qualilted
Totem for the moat numerous branch of the State le^Hlaturo, and
the qualifications in different States are eaaentialty different,
and, indeed, are in no two Statca exactly atika The Constitu-
tion itself, therefore, lays down a principle which requires that
no regard shall be had to the policy of particular States towards
their own inhabitants. Why should not the eamo principle
apply to ttlaves as to other perscHis who were excluded ii« voters
in tlie States ? >
§ 688. Some part of this reasouing may not bo very satisfac-
tory, tnd especially the latter puri of it. Tlie distinction be-
tween a free person, who is not a voter, but who is in no sense
property, and a slave, who is not a voter, and who is in every
practical sense property, is, and forever must form, a sound
groond for discriraiDating between them in every oonstitutioa
of gOTemment.
§ 689. It was added, that the idea was not entirely a just one
that representation relates to persons only, and not to property.
Government is instituted no leas for the protection of the pr<^
orty than of the persons of individuals. The one as well as the
other may, therefore, be con.<iidered aa proper to )>e represented
by those who are chared with the gorcnunent And, in point
of fact, this view of the subject constituted tlie baflis of some of
the representative departments in several of the State govem-
menta.*
§ 640. There was another reascm orged, why the rotes allowed
in the federal legislature to the people of each State ought to
bear some proportion to the comparative wealth of the States.
> The Pcdcnlkt, Ko. SI i 1 Tuck. BlKk. Camn. App. IM, ISl } 1 EUiot'i DvbUv,
Sl^ 314.
* Th* FfUnlUt, ITo. H : 1 ElUot'a D«t»t«^ SIS.
CH. II.]
HOraS OP REPneSENTAnVKS.
■169
It VIM, that States liavc not on influence over other States, aris-
ing from the superior advADtagcs of fortune, aa individuals in
tlie sainc State possess over their ncody fcllow-eitizons from the
like eatise. The richest State in the Uuioit can hardly indulge
the hope of influencing tlie choice of a single representative in
any other State; nor will the representatives of the largest and
richest States ponsesfl any other advantages in the national le-
gislature, than what rcanlts from BU]>er)or numbers alone.'
§ 1)41. It ia obvious that those latter reasons have no just ap-
plication to the subject. They are not only overstrained and
founded in an ingenimta attempt to gloss over the real objec-
tions, hut they have this inherent vice, that, if well founded,
they apply with equal force to the representation of all property
in all the States; and if not entitled to rttij>cct on this aceount,
they contain a most gross and tndefensihle iiie<]iutlity in favor
of a sini^le Rpccies of property (slaves) exixtiiig in a few States
only. It might have been contended, with full as mud] pro<
pricty, that rice, or cotton, or tobacco^ or potatoes Bhould have
been exclusively taken into account in apportioning the repre-
sentation.
8 642. The tnith is, that the arrangement adopted by the Con-
■stitulion was a matter of compromine and concession, confessedly
unequal in ita operation, but a necessary sacrifioe to that spirit
of conciliation which was indispensable to the union of States
having a great diversity of interests and jiliysical condition and
political institutions.' It was agreed that slaves should be rep-
resented under the mild ap]>ellation of "other fenonti," not as
free persons, but only in the proportion of three-fifths. The
clause was in su)>stance borrowed from tlic resolve, posaed by
the continental Congress on the 18th of April, 1T83, rQCommend>
ing the States t« amend the Articles of Confederation in such
manner that the national expenses should !« defrayed out of a
common treasury, " which shall bo supplied by the several States,
in proportion (o the whole number of white or other free inhab-
itants, of every age, sex, and condition, including those bound
to servitude for a term of years, and three-fifths of all other
pcraons, not comprchcndixl in the foregoing description, except
< TIm TfAinXM, No. SI.
* 1 Etliot-* IVbtlM. 31^ SIS ; 3 ntlc. Rirt. 23$ to StI ; td. 915. SM, M7, SM ; 1
K(ol*« Coimn. Zlfi, S17 ; T&a FedenlUt, Not. S7, 54 ; 3 Dili 171, ITT, ITS.
4T0
coiismtmoir of thk trKmo srins. [book m.
lodivts, not pAjing taza, ineuifa State" *(«) la ocdcr to roooo^J
eile tlie noa-flUiYehoUiDg State* to this proruioo, — ofter ebim I
wts iiuert«d, that direct tutes shoold be ^iporti<MMd in tbt i
nunocr w representatives. So that, theovetieallj', Kprw— ntatiou
and uxation might go pari /mmh.* Th» promioc, bomrcr,
is mort specious than solid; for, vhile in the levy at direct
taxea, it apportioas them on thrae-fifths of penotu not free, it,
on the other hand, reallf exempta the other two-£fiba tnui being
taxnl at all as propertj-.' Whereas, if direct ta-xes had b«en
appurtigned. as opoo principle thej ou^t to be, acoordiag lo tlia
real raloe td propertv within the State, the whole of tho atavea
vDold have be«n taxable as property. Bat a far more striking
ioeqMiitjr has been disclooed b; the practical operatiooo of tlM
gfrnnuamL The principle of repreaentatiaii is eoiMiat and
uniform; the lerf of direct taxea is occaAional and rare. In the
eoone of forty rears, no more than three direct taxes* hate
levied; and those onlj ander tctt extraordinaty and
circnmitancea Tlio ordinary expenditare* of the goremment
ate, and alnya hare been, deriied from other aonrees. Im*
posts opon foreif^ importstiaas hare avpplied, and viU geaei^
ally mpply. all the "«*"««■ wanta; and if these riMwdd iwt
famish an adequate rereooe^ excises are next itaoifed to, as
tlie Borast and most eonTenieot mode of tanfrst IHieet tues
eoostitnto the last resort, and (as mi^t bare been foreseaa)
voold nerer be laid ntil other resoarees hsd failed.
§ MS. Tiewod in its proper U^ as a real eossptowse, in ■
case ci conflicting Inteiesta, for the ooounon good, the peoviaMO
is entitled to great praise for its moderatian, its aim at practical
utility, and its tendew? to sadafr the people that the Union,
brntaed by all, oof^ to he dear to all, by the priTileges it <
as TcU as the blesrings it ■eearaa. It had a auterial
in racooeiling the Sootbera States to other prorisions m tte
Coestitiitiaii, sad especially to the power «f nsfciag eoBHNndsl
I Jow^ if Oi^n^ Vm. TA & p. IM 1 1 BBoiri TKIirtw. H
■ -TV FriMate. H* U -. J«b^ alOmwt^^m. Itt Mj-. m. ITS ; H. 171. ITS,
lTt.irMSI^llS;M.W»;M.lT«;iaiM^Di>1»M,C.«ll,»;M.»lS.
■ iTv^M'aBkck.OMM.tsi^iaiiinw^ihfaM^a^^
> U 17M, UU, lau. TWlMMipMU^i^aMiaUIS.
(•)»!■]
CB. IX]
ilk. * '
B0CS8 OP BSPRESENTATIVKS.
471
KgtilatioriK t]y » mere majority, irliich waa thoiif;)it p&culiarty to
favi>r the Nortiiem Stat«fl.' It lind «oiuctittic« bcca compUinixl
of as • grie^'auce; but he who wishes woll to hid cuuntry ii-ill
adhere steadil}' to it as a fuDdamental policy which cxtiiiguiahca
noDK! of the most miacbieroun souroea of all political diriaiuiia,
— thusu founded on gcoKraphtcal poAiUonii aud dnmr-Htic institu-
tions. It did noty bowcrcr, paits tbv convontion without objec*
tion. Upon itii finit introduction, it was aupported hy the votes
of nine Stutiv against two. In subsequent stages of the discua-
sion it mot with some opposition;' and in some of the State
conventions it wiu strenuously resisted.' The wish of erery
patriot oti^it now to be, nyuiricat in pace,
§ t>44. Another part of tJie clause* re^anla the periods at which
the cuumentiuu or census of the inhabit^uitsof the United States
shall be taken, in order to provide for new apportionments of
reprcseutatiree, according to the relative tncreuse of the popula-
tion of the Staler. Various propositiuiis for this purpusu wcro
laid, at different times, before the convention.* It was proposed
to have the census taken onoe in fifteen years, and in twenty
years; but the vote hnally prevailed in favor of ten.* The im-
portance of this prorision for a decennial ceiutus can scarcely bo
overvalued. It is the only effectual means by which the relative
power of Uie several States could be justly represented. U the
system first established had been unalterable, T017 gross incqnal*
ities would soon have taken place among the States, from the
very unequal increase of their population. The representation
woold soon have exhibited a system very analogous to that of
tlie riou»c of Commons in Great Britain, when- old and decayed
borout^hs send reprcsentatiws, not only wholly dieproportionata
to their importance, but in some cases, with scarcely a single
inluibitaut, they match tlic representatives of the most populous
counties.*
§ 645. In reinrd to the United State«, the slightest examina-
tion of the apportionment made under the first three censuses
■ 1 EUkt^ DthalMt SIS, tlS.
> Joimiklo(ODii««Mioa. lllh Jium, 111. 118. 8m«1w Id. Utk Jolj, 198, !««, 17(^
9U, 2U : 4 EllM't DtbUM (Y*M't HiMtw). •*.
* I ElIJai-» IVlKtaik E8, M, HO, Ml. SIS. SIS, S41.
• JomnHl of Cbnnatiaa. 103, Mi. Iff7. ICS. ItW, ITS. 174, IBO.
* jMnial of OMTantMU, ttth July, ISS, ITO, ITS. 180.
• 1 Black. OMnnt. ISS, 173. 174 ; B»k on OouiiL eb. 4. p, 41.
472
coNsnruTioK op the mitTGD STATEa. [book m.
viU demonstrate this conclusioD id a very striking manner. The
repneeatation of I>elBware remains as it was at the first appor-
tionment; tliotte of New Hampshire, Rhode Island, Connecticut,]
New Jcr«c^, and Maryland have had but a small comparath
increase; whilst that of tlassachnaetta (ioclading Maine) hasi
swelled from eight to twenty; that of Xev York, from six to
thirty>four; and that of Pennsylvania, from eight to tveuty-six.
In the mean time, the new States have sprung into being; and
Ohio, which in 1803 was only entitled to one, now cotintit four-
teen reprcsentatircs. The oensns of 1831 usbibita still moro
striking resulta In 1790, the whole population of the Uoitod '
States was about three million nine bondred and twrntj-uloe
thousand; and in 1830, it was about twelve million eight hun-
dred and fifty-six thousand. Ohio, in 1833, cuotaiaed at letstj
one million, and New York two million of inhabitants. TbcMt
£act8 show the wisdom r^ the provision for a decennial appor-J
tiooment; and, indeed, it would otherwise have hajtpened
the ajstem, however aound at the be^nning^ would by this time j
hatve beea prodncdTe of grosa abose^ and profaafaly hare engeih-]
dared fends and dtacootenta of tbemaelyaa lofficieot to have
oeeaaiooed a dissolution of the Cnion. We probably owe this
provisicn to those in the eonventioe who were in favor of a na-
tianal government in prefierenoe to a mere ooofederatiao of
SMea.>
§ $4& The next part of tlie elaase relates to the total
ol the Honae of Reprewtativea. It declares Uiat ''tlw nnnbarl
of reprcaentatiTCs Aall not exceed ooo for eraiT thirty I
This was a sabjrct of great interest ; aad U has faeea awcrted
that seareel; any article at the whole QjMtilutJM ■rpwi to be
rendered man worthy of atteotiaa by the ««i^ of character,
and Ao apfarcnt fotve of argoamt, with whidi it wss origiBally
■ssailfd » The tumAer fixed hf the CtmstitattoK to
dw body, in the first iMtoDB, aad ■ma a •
lixty-fi^
{ err. Sevenl objedieM vera aifed
Fba^ that so onall a ■■aler «f rtprwgBtatiHM ««de W «b
ad iifiisiiiiy ftf the fiaUie Islisiiili Seaaaflr, ttat tbej
1 ^ Jm^ <( CkwMHi^ lOk lifc ML I7C na. UB.
■ nt ^h«te. 5«. n : > a»-. Mmmm «V ) U. M ; IL Sff ; « I
(Ta« ad Um^^ Uov «> Go. OMmL tm taa.
CB. Dt.]
HOUSE OP RBrtl^ENTATiraB.
478
vould aot possess a proper knon-lcd)!« of the local circomstanciet
of their nnmerous coDsttUients. Thirdly, that they vontd bo
taken from that clafl.t of citizens which would sympathiKC least
with the feelingfl of the people, and be most lik«l}- to aim at a
pcrnianont elevation of the few, on the depression of the many.
Fourthly, that, defective as the namber in the Tint instance
would be, it would bo more and raoro disproportionate by the in-
crease of the populutiun, and the obstacles which would pruvent
ft correspondent increase of the ropresentatiTes.'
§ 648, Time and experience have demonstrated the fallacy of
some, and greatly impuired, if they have not utterly destroyed^
the force oC all o{ these objections. The fears which were at
that pi'riod BO studiously cherished, the alarms which were so
forcibly spread, the ditn^ers to liberty which were bo strangely
exaggerated, and the predominance of aristocratical and exclu-
sive power which was so confidently predicted, hare all vanished
into air, into thin air. Truth has silently dissolved the phan*
tonis rained by imaf^inations heated by prejudice or controrersy,
and at the distance of forty years wo look back with afltonishment
at the laborious reastmin^ which was employed to tramjuillize
the doubts and assuage the jealousies of the people. It is lit,
however, even now, to bring this reasoning under review, be*
cause it inculcates upon us the important lesson, how little
reliance can be placed upon mere theory in any matters of gov-
enunent, and how difficult it is to vindicate tlio most sound prac-
tical doctrines against the specious questionini; of iuf^enuity and
hostility,
§ 649. The first objection was to the smnllness of the number
composing tho House of ReprescntativeA.' It was xaid that it
was unsafe to deposit the legislative powers of the Union with so
small a lK>dy of men. It was but the shadow of representation.*
Under the confederation. OongreBS mitrht consist of ninetyK)ne;
whereas, in the first instance, the Ilouse would consist of hut
I Th« r>dmlM, Xa. U ; 1 EUUt'a Dol«tM, « ; U. Ml, Ul, Ud. US. SM: 330,
E!l to 3tS i Id. 3« to 13S.
■ It U raiuilubU tliat the AmvricMi writer whom t k>*« •rmal t(n«* dbd ItkM
u ofpattu «ibt«ction>. He Mjn, " Tlis DkUoiuJ Houm of RvpttMntalirm will b# at tnt
too lug* ; Hiii bMMlW ntjr b* tDoeb too lugn to delibaoto uiil dniile apco ibc bad
mm " Thouf^to npoa du PoHtiMl SItHlian of tha Unhcd Sbitaa of Aamiw
{WofOMIn:^ nut.
> S Annr. HotMn, »7, Ul, »17, SSI, SSL
474
coNsrrnrriox or tbb timrED states. [book m.
six^-five. There wu no certainty that it vould ever be io-
ereaftcd, as that would depend upon the legioUture itself in il«
fnture ratio of Rpportioomrnta; and it was left completely tn it«
discretion, not only to iuorcaso, but to dtmintsb the present niuQp' ,
ber.' Under such cireumslaoces, there was, in fact, no consti-
tntional Rccuritr, for the vhole depended upon the mere iabegritj
and patriotiaut of those vho should be called to administer it*
§ tioO. In r^ply to thene suiJigeBtinns it was said that the pres-
ent number would certainly be adequate until a census was taken.
Althou^ nnder the confederation ninety-one members might lie
chonen, in point of fact a far less number attended.* At the very
first census, supposing the lowest ratio of thirty thousand wera
adopted, the numbers of ri-prescntativcs would be increased to
one hundred. At the expiration of tw«nty-firc yeats it would,
upon the same ratio, amount to two boodrod, and in Efty years
to four bundn.'d. a number which no one could doubt would be
sufficiently lur^ to allay all the fears of the moftt sealous ad-
mircni of a full rcprescntatioo.* In regard to the possible dtmi*
nution of the number of representatives, it uiii»t l>c purely aa
imaginary ease. As every State is entitled to at least one repre-
iontative, the standard nei-er would probably bo reduced below
the population of the smallest State. The populatiuo of I>ola>'
ware, whicli increases more slowly than that of any other Stote^
would, under such circomstanoes, furnish the rule. And, U tba
other States increase to a very lai^ degree^ it is idle to snppoM <
that they will erer adopt a ratio which will give the smallest
State a greater relatire power and infiuence than thenuelves.*
§ 6.>1. But the question itself, what ia the proper and oonTcn-
ient number to compose a representatire legislature, is as tittlt
susceptible of a precise solution as any which can be stated in
the whole circle of poIiticB. There is no point upon which differ'
ent nations are more at variance, and tbe policy of the Ameri-
can Suites thcmseh'es on this subject, while tliey were colomea
and since they have become independent, has been exceedingly
discordant Independent of the differences arising from the
I 1 Eltioi't TMMm, H, S7 ; 14 304, SW. *N t > tOUoft tkUXm, 51^ H i Id. M.
I I EUiot* THhLUM. fio5 : a euim'* immm. as, m, isi, soa i Id. 3S3, azi.
• t Elliot'* D«1»tM,S7. MB.
( T1i« Fcdmlut. No. S5 ; I Sllot'l tMMm, 914, 21$. 137.
• 1 ElHM-a DOMm, 313. M».
OB. )X.]
B0D3B OP REPRESENTATTTIS.
m
po|>ul&tion And ftlu of t)ic States, there will be found to bo great
dtTorsities among those whose population and size nearly ap-
proach each other. In Mnssacbosetta the House of Representa-
tives ts composed of a number between tliree and four hundred;
in Pennsylvania, of not more than one-lifth of that number; and
In Nov York, of not more than one-fifth. In Pcnnsjlvanin tbo
repr«»ontatives do not bear a greater proportion to their oonstitu*
cnta thnn one for every four or fivo thousand. In lUiode Island
and Maasachuaetta they bear a proportion of at least one forever;
thousand. And according to tlio old constitution of Georgia, the
proportion may be cjirriod to one for every ttfn eiecture.'
5 652. Neither is there any ground to assert that the ratio
between the repreM>ntat)ves and the pi'Ople ought, upon principle,
to be the same, whether the latter be nuniermn or few. If the
rcpreeentalivps from Vii^nia were to be ohosoa by the Htandard
of llhodo Island, they would then amount to five hundred, and in
twenty or thirty years to one thousand. On the other hand, th«
ratio of Pennsylvania ap])Ued to Delaware would reduce the rep-
reacntative assembly to seven. Nothing can be more fallncioua
than to found political calculations on arithmetical principles.
Sixty or seventy men may be more properly trusted with a given
degree of power than six or seven. But it does not follow that
six or seven hundred vould be proportionably a better depositary.
And if the suppusilion is carried on to six or seven tliouHand, the
wholo reasoning ought to be reversed. The truth is, that in all
oase«, n certain number seems necessary to swruro the l>enelita of
free o>iisultntion and diHiMiflsion, to guard against too easy a
combination for improper porpnsea, and to prevent hasty and ill-
advised legislation. On the other band, the number ouglit to be
kept within a moderate limit, in order to avoid tlie confusion,
intcm])erance, and inconvenience of a multitudct.' It waa a fa-
mous naying of Cardinal Pe Retz, that every public assembly con-
sisting of more than one hundn-d members waa a mere mob."
But surely this Is juat us incorrect as tt would bo to arcr that
every one which consisted of ten members wo«iId be vise.
> Till F«d<>n1ut, No. U. 8m*1m tk*etMa««aMlntloMof tint pwtod. 1 Kllat'*
IMaiM. 314. lie, ttO. 23A. 138. Kl 9S3.
* Tbo P>d*nJM, Ko. 55 : 1 EIIm k Dchats. Sid. SM, SM, Ol, S11, ttS. MS, 140,
t£3 ; S Wil«nn'» Utr l,*cl ISO ; I lUU'i Oomn. 317.
I 3 WilMo'i Urn Lwt. ISO.
4T6
ooMnrunox or tse l51uu ctatc
$ 60&. llie qnotian then is, and fonnr mask he, m eTeiy ■»-
tioD, a mixed qaestioo of Kiiind poller and discrstkiD witfc i^er-
ence to its size, its popaUtioa. its intitatiana. Ha local and
fbjBicai condttitm, and all the other eticaaulaaees aifcrtJag ila
on IntcresU and eonrenieoce. As a pnaort nnaber, ais^-fire
was snfficieat for all the exigeudta at tbe United Sist«t,
It was irisMt and safnt to kara all fntnre gnealioiw oi
to be jnd^ of by tbe fotnre condition and exigeaeiea of
Union. What groond ooold there be to anpinae that sndi a
Ti'rin*r'' ehooen InennialtT, and renponstble to their cmatit
woold Tolnntarilj' betnj their trusts or refuse to follow- the
lie will ? The verjr state of the coantry forbade the auppoaJtioa.
'tttej vonld be watched with the jealoosy and the power of
State tegisUtum. ' Tbej would hare the faif^iest indaoaBOBto '
perform their dotr. And to snppose that the poasoaioo «l
for so short a period coald blind them to a sense of Aeir
interests, or tempt th^m to destror die poblie libertiea, was
improbable as anything which coold be within the scope ol
imagiostion.* At all CTcota, if they were eaittr <d misooodl
their removal would be ioeTttablc, and their soccessots woold
abore all false and oormpt coodoct. For to reason otherwise
would be eqmvalcnt to a declaration of the nnirersal corroj
of all auakiQd, and the otter impracticability of a repol
government. The ooiqjreafl which conducted m tiinm^
Berolotion was a less Dmnerona body than their saocessors will
be.* They were not chosen by, nor responsible to, the people at
large;* and though appointed from year to year, and liable tn be
recalled at pleasure^ they were frcncrally continwd for thivtti
years. They held their consultations tn secret. They transacted '
all oar foreign affairs. They held the fate of their country la
their hands during the whole war. Yet they never betrayed oar
rights or our interests. Nay, calumny it«elf never ventuxod l«,
whisper anything against their purity or patriotUm.'
{ 654. The snggestion is often made that a nomerooa lepre-
• Tba Fadenliit, Ncl 56j 1 Kniif ■ D«tMl« SM, SS. IM.
■ n« r«Anmliit. Vo. Ui ] Enk>f« [MmU^ 9M, ttS. StS.
* OmtnUj tVr *"* cbMcn hf llw 8UM ItgUHam ; bat la ts« ScalM, niwilj.
Bfcod* IdaftJ ud OoHiMttent, tb*r «<»• <^m« ^ dto pwfl*. n> r^dwJM. j
So. M.
CH. a."]
BOCSB OP BEPRKSKNTATirKS.
m
Bentotioa is n«oc«ftai7 to olitnin the confidence of the people.'
Tliis is not geDerally true. Public confidence will bo ca»i\y
gained b; a good adminiBtratioQ, and it viU be secured b^* no
other.' The remark made upon another occasion hy a great luUD
ia correct in regard to reprcsentatiTca, rum numtrantur, pondtr-
antur. Dclavrunit has jiut as much conSdence in her representa-
tion of twouty-ouc aa New York haa in Itcnt of Aixtj'-dve, and
Masaacfausetta has in bcre of more than three hundred.^
3 (>55. Nothing can be more unfair and impolitic than to sub-
stitute for Ki^imcnt nn indiscrimloate and unbutmdod jealousy
with which all reasoning must bo vaiu. The sincere friends of
lil>ertj-, who gire tlicmsclves up to the extravagances of this pas-
sion, inflict the moat serious injury upon their own cause. As
there is a degree of depravity in mankind which requin-s a cer-
tain degree of circumspection oDd distrust, so there arc other
qualities in human nature which justify a certain portion of l-s-
tcciu and coiifidfuco. A republican government prc^supposes and
requires the existence of tbe«e qualities in a higher degree tliaa
any otlicr form; and wholly to destroy our reliance on tiiem is
to sap all tlie foundation on which our liberties must rest*
§ 656. Tlti; next objeetioo was, that the House of Repnwonta-
tiros would be too small to possesfl a dun knowledge of the in-
terests of llii-ir coiiHlituents. It was said that the groat extent of
tlic United States, the variety of its interests and occupations and
institutions, would rcfjuire a very numerous body in order to bring
home information necessary and proper for wise K-gislatton.'
§ 637. In answer to this objection, it was admitted tliat the
representative ought to be acquainted with the interests and ctr-
cumstttDccs of hia constituents. But this principle can extend
no further than to those interests and circumstances to which
tlie authority and care of the representatiye relate. Ignorance
of rery minute objects which do not He within the compass of
legislation is consistent with every attribute necessary to the
performance of the legislative trust* If the argument, indeed,
required the most minute knowledge, applicable even to all the
1 1 Elliot'* Detatia, 9IM, 217.
• Id. S17, 23S.
• 1 ElUat-> n«b«tw. Sir, SSS, Ml, U3; S6S, tM i S VSU't D*1»tM, t07, tl«.
• Til* r*d«Kll)it. Ko. S5 i 1 niiaf* D*t*tM, ««, MB.
• 1 Elfiof* DclMM, SIP, 3K. »S, »% 333, S«l.
• TIm rolenlut, Ho. SS -, 1 EUiof ■ IkimXm, t», SSff ] 1 Eanfi Oamm. tir.
478
OOiranTCTlOH OF tBE tTMlTED StAIES.
[
profemiKl objects of legislation. It woald overturn itself; for thftj
thing vould l>e uttvrljr impracticable No reTreseotatire^
ID the State or nutional councils, ever eoald know, or eren
tend to know, all arts and tcienee* and trades and subjects
vhich le^slation maj operate. Onu of the great duties of •
re»eDtati\'e is, to inquirv into and to obtain the necOTSArr infor-
DMtion to enable him to act visclr and eorreetlj in partic
caMS. And this is attained bj bringing to the investigatfc
sndi cases talents, indastT7, experience, and a spirit of conpro-
benslTe iDciuiry. No one vill pivtcnd that he who is to
law* ought not to be well instraned in their nature, int
tioD, sad practical results. But irhat would be said i^ iqxia
such a tfaeorjr, it was to be aerioosljr urged that Boae but
cal lavjrera oo^t ey«r to be eligible as legislator* t The
is, that we most rest aatiafied with general attainmeats; and it
is viaionsrr to ntppoae that any one man can tvprcaeot all tb^k
skill and interests and bnsiness and occnpatiaaa ef all bis eoD-
stjtuents in a perfect manner, whether the; be few or taukj.
The most that can be done is, to take a eomprebenaire sorrsT- •
the general outlines, and to search, as oocasioo nu; reqaire, for^
that more Intimate information which belong* to particular sob-
jects Tvqiiiring immediate legislation.
$ 668. It is br no means true that a larg* repnsentatioa im .
BMCSSary to understand the interest* of the people. It is not]
•ither theoretically or practically tine that a knowledge of
interest* is augmented in pr<^wrtion to the increase al
talirea.) The interests of the State of New York are probably i
well nnderstood bT its sixtj-fire repcesentatiTe* a* Aose o(
Haasachusetts by its three or four hundred. In tmet, hlfJior i
qnalifieations will osaally be son^t and require! where the n^'i
reaentatiTes are few than where they are many. And ther« wW
also oe a higher ambittoo to serre where tbe aatallnesa of Ihe^
number creates a dveirahle distinctiria, than lAere it ta
with many, and of course indlTidnsI importaoM f* fiisniitiillj
diminished.
§ 659. Besides, in considering tiiis sobject, it is to be bmoI-^
lected that the power* of the geneiml gorenunent are limited,
and embrace only sach objeel* •* are cf a national cfaaradnr. ,
InfonnstioB ot peculiar local intereats is, oonaaiwatly, ef
1 1 BHst^ DvtaH, <9ft.
CO. IX.]
HOUSE OF RBPEteSESTATtTBS.
«ni
value aod Importance than it would be in a State legislahtn,
whcro the povcni are general.! xti^ knowledge required of a
uutionul representative is, therefore, necensnrily of a more large
aiul couipn-lK'naivo cliaractor than that of a mere State repreacn-
tativc Hiniitu iufurmation, and a thorou^ knowledge nf local
interests, personal opinions, and private feelinga, are far more
important to the latter than the former.^ Nar, the very devo*
tioa to local view* and fcelinpi and interestn, which naturally
tends to a narrow end scirish policy, may bo a joat disqualifica*
tion and reproach to a member of Coi^reM.> A lil>enil and en-
liglitened policy, a kaowlodgo of national riglilit. duties, and
interests, a familiarity with foreifni ^vernments and diplomatic
history, and a wide surrey of the operatioits of commerec, agri-
culture, and manufactures, seem indispensable to a lofty dla-
charge of bis functions.* A knowledge of the peculiar interests
and products and institutions of the dilTorent .Slates of the Uniaa
is doubtless of great value ; but it \e rather as it conduces to the
performance of the higher fonctiona alrea<ly spoken of than as it
srmpathixeo with the loeal interetita and feelinga of a particular
district, that it is to be estimated.' And in regard to those local
facts which are chiefly of use to a member of Congress, tbey are
precisely thoi^p which are most easily attainable from the docu-
mentary evidence in the departments of the national govenmient,
or which lie open to an intelligent man in any part of the 8tata
which he may represent* A knowledge nf commerce and taxa>
tion and manufacturea can be obtained with more certainty by
inquiries con(hieted through many than through a single channel
of communication. The representatives of each State will gen-
erally bring with them a con»ideral>le knowledge of its laws and
of the local interests of their districts. They will often have
previously serred as members in the State legislatures, and thos
have become, in some measure, acquainted with all the local
views and wants of the whole State.'
I Th« rdcnUit, Ko. 54.
• 1 BlUotV D«b>U^ 238,SS9,SG3i SUoTd'tDtbtUafiairSB). ISO; Tke Pedenl.
1«,No.h;.
* 1 Rlliot'a XHluim. tM.
* I BUrot'i DtbitM, SS8, S», tfS 1 Tha Mmlltt. Ko. 54.
• The Fxhntliit, Ho. SS ; 1 Elliofi D«bMM, SM HI. Sa tM, SSS.
• TIm FoaanluL Nol B4 ; 1 EUkt'a Dutata, MS, «», U*.
* Tke Fadenlirt, No. H.
4m
COSSJTITUnON OP THE OWTED ST*'
[book in.
§ 660. The fnnctioiia, too, of a represeiitatiT« in Ctatgnes re-
qtiire very diiferent (]nalificati<nis and attainmeots from those
rcqaiml in a State legialatore. Infomuiticm rcUtire Lo locsl
objects is eaxiiy obtained in a singlv StiUc, for Uwrc U no dif-
fcrc&ce in its laws, and ita int«n>«ta an but liltlo diTonified.
But the itrgij(lation of Congress nacbcs orer all the rotates ;
as th« laws and local circnmatance* of all differ, the informa'^
tion which is requisite for safe legislatioa is far more difficult
ami various, and directs the attention abroad rather than
home.' Few members, comparatJTeJj speaking will be
ignorant of the local inten»ts of their district or State;
time and diligence, and a imro onion of sagacity and public
spirit, are indispensaUe to aroid cgr^ous mistakes in nationatj
measures.
} 661. The experienoo of Gr«at Britain upon this subject for-
nlafaes a rcrr iiutroctivtr commcDiarr. Of the five hundred aadi
fiftf-eitiiit members of the House of Common^ vat ninth mn\
elected by three hondred and slxiy-four penona, and one half]
by &ve thousand ser«a hoadrad and tweocv-three penona.'
this half certainly have little or m claim to lie deemed the gnac>^
dians of the iDtere«ts of the people, and indoed an notoriously
elected by other interests.' Taking the pofmlstion of the vholay
kingdfno, the other half will not sTenge bkw« than one repre^'
■entatiTe for about tweotr-nino thousand of the inhabitants.* («)
It may be adi]ed, that nothing Is mote oammoa than to
men for represeotatires of large and populous cities and districtl^ '
who do not reside therein, and cannot be pfesoned to be Inti>
mstely acquainted with their local iatereati and feelinga. Tbe-i
choice, bowerer, is made from high nkotiraa, a regard to talent^ J
public senices, and political sagacity. And whaterer may be]
the defects of the rcpreecntatiye system of Great Britain, vetj'l
■ TW F«tetfkt 5*. M ; 14. S«. S.
■ 8m Mi. Chn«in^ MM (HI, W 1
fma thM it hwhiM
W^a. S«alK4U«.I.
> TW P«te*ltal, Xa^ 3Si tiirf, Henl f«l—|*j. & I, «*. 7.
• n* rMniiM, No. H, a.
1h»1
pnMi, bMt •biob it •{»
■«fr Miiiiik
CH. IX.]
HOOSK or REPRBSCNTAl
481
few nt the <)ef«ctf) of its IpgUIation have Wen iini>iit<^d to the
ignorance of tlie HoiiiU! of Comniona of the true iiilon-sts or cir-
cuniHtnni'cft of the people'
§ 662. In the historj: of the Cotutitution it U a ciirinnii fact,
tbttt with somu BtuU-Hmvit, possetisiug high [Militicsl diHtinctinn,
it was inudc a fundumvatal objoctiuo aguinitt tJio eatabliBhment
of auj nutional Icgislaturo, that if it " trcro compoHcd of so nu-
merous a bod/ of men as to rci^rescnt tho inturt-sts of all the
iobabitonls trf the United 8tat«s in tlic usual and tnic ideas of
representation, the expense of 8np]>oi-tiiig it would be intolerably
burdensome ; and that if a few only were rested with a power of
legislation, tbe intei'eflta of a gremt majority of the inhabitants
of the United States must be ne<;p88ari ! y unknown; or, if kuown,
even in the first stagra of the o|>era(ii>ns of the new government,
unattended to. " ^ In their riew a £ree government seems to hare
been ineompatible with a great extent of territory or population.
What, then, would become of Great Itritain, or of France, under
the present oonatitutiiNt of their legislatire departmenta ?
5 668. The next objcetion vrua that the representatives wonld
be choAen from that class of cititcns which would hare the least
sympnthy with tbe maas of the people, and would be most likely
to aim at an ambitiona sacrifice of tho many to the aggrandize*
ment of Ibefew.' It was aaid, that the Author of Nature had
bestowed on aome men ^ater cai^acitics tJian on others. Birth,
education, talents, and wealth created distinctions among men
: Tiaihle, and of an much influence, as Htara, gar1cr», and rib-
In every society men of tbie class will cummaud a aupe-
rior degree of respect ; and if tho government is so constituted as
to admit hut few to exercise its iKiwers, it will, according to tho
natural course of things, Iw in tlivir bauds. Men in tho mid-
dling class, who an qualified as representativea, will not be so
anxious to be chosen as those of tlie first; and If thoy tm, they
will nut have the means of so much influence.*
t The F«lmlut. .N'o. 50. Sw alw Dr. FnukUn'i B«in>rlu, 2 ntk. HU. 213 ; 1
Wilon-« U<r Leet. 43t, iSS; PlOer't Honl Phikmphy. B. 4^ eb. T ; 1 Kcttl's Cmbih.
S19.
' iMUr «f Uranv. TatM uiil Laatlnit to Got. Gintoa, I7B3 (8 Ann. HolNB^
15ii, 159).
> Ttw Pxlenliat, No. 97 ; 1 Elliot'* D*UI«t, SM^ 831. 8w aW Tho F«cl«nltii,
Ifa. U.
• 1 Eltiat-i DelwtM, Sll, SSI.
voi-i. — 31
482
COKSTlTtmOK OP TBB UKETBD STATES. [bOOR m.
§ 6ft4, It was anstrered, that tho objection itself !» uf a very
txtraordinnry cbaracler; for vhile it is levelled against a pre-
toudi^l ulifrarchy, in principle it strikes at the very root of a re-
publican go\-i-mmeut ; for it ■iippoaes tlie people to be iucapuble
of making a proper clioico of reprewntatlTOB, or indifferent to it^
or utterly cormpt iu tlte exercise of the ri^t of suflfnure. It
would not be contended that the first class of societv, the men oi
talents, experience, and wealth, ought to be constitaiioBallv et-
eloded fi-om office. Such an attempt would not only be onjoat,
but suicidal ; for it would nonrish an influence and betimi wilhiai
the state, which, u]>on the very stiji^Msitioo, wtmld oontintially'
exert its whole means to destroy the goremment and onrerthrow
the liliertios of the people.' What, then, is to he donef If ttieJ
people are free to make the choice, they will naturally maitc ifcn
from tliat class, whatvrer it may be, which will in their ofiinjon
be« promote tlicir interests and preserve their lihertiea.' Noei
ar« the poor, any more than the ricli, beyond temptation or lor*
of power. Who are to be t!ie electors oC the representatiTM?
Not the rich, more than the i>oar; not the teamed, more tluuij
the ignorant; not the beira of distingai^ed families, more tfaaa
the children of obscurity and nnpropitious fortune.* Tbd elect-,
ors are to be the body of the people of the Cnited States, jeidoM
of their rights, and accustomed to the exercise of their paw»r.
Who are to be the objects ol their dw»oe f Brery cititen, wboae
merit may commend him to the esfeeem and confidence of his
fellow-eituena. No qtwlificatioo oi wealth or birth or reliviea
or civil professioo is recognised in tiie Oaosdtution ; and, e>oii- '■
seqnently, the people are tm to choose from any rank of society
aeeording to tiieir pleasure. *
$ 60S. The persona who shall be elected repceBCBtatires nmst'
hare all Ae inducements to fidelity, Tigilsno^ and a derotioo
U> Ae iatcnsts ol the peo[de wlddi eaa poaalbly exisL They
mtiat be prwamed to be Mlected from their Itnown rirtan and
estimable qualities, as well aa from tbeir talents. Thrr most
have a desire to retua and exadt tiieir iqntaUua, and be ambi-
tiooa to deserve the cootiiiBUiee of ttat poblic &Tor by wUeli i
> 1 OBaf « DtiMm sat m
* n* yWirilfaC Ita IS : 14. Itau SS: M. ITo. S7.
* T^ n hnlhr. ya. S7 ; U. S*. W ; U. X«. «B.
OB. IX.3
BOOSE OP REPREBEM'A'nrES.
481
they liuvc bocQ ele\-«t«d. Thorc i« in evvrj broast a scnsibilitj
to iiuirkii of bonor, o( fnvor, of esteem, aiid of confidonce, which,
apart from all oonsideratioos of inte^ee^ 18 some pledge for
grateful and benevolent retnrits.' But tli^ intercut of the repre-
aentatire, which naturally liinda him to his coaatitucnta, will be
■treogtliened by motivea of a aottinh character. His election ii
bieuniat; and he miuit iw>on rotuni to tJie common rank of a cili*
sen, QDless he is re-elected. Does he deaire otJioei' Tlien that
very desire will secure bis fidelity. Does he feel the value ot
public diatinctions ? Then bia pride and vanity will equally at^
tach bim to a ^vcmment which afforda hiin an opportunity to
share in itM honors and distiactioiu, and to the [Mtoplo, who alone
cau cunfvr tlii^io.* BveiJca. ho vuii luakv no law which will not
wotgb an hvai-ily on himself luid bis fricnda aa on olhcn; and
h« can introduce no oppression wbicb must not be bomo by him-
self, whi-n he itinkit back to tbc common level. Aa fur uaurpa-
tiou, or a pcrpi-luati<^n of Lis authority independent of the popular
will, that its hopeless, uutit the period shall have arrived ia
which the people are ready to barter their liliertie«, aud are
rcwly to become the volmitary slaves of any deepot* Wheuever
that period shall arrire, it will be useless to speak of guardians
or of ri^ita. Where all arc cornipt, it is idle to talk of virtue.
Quis eiutodiet cu»tofie» f Who shall keep watch over t]ie people
when they choose to betray themselTefl T
§ 6^. The objection itself is, in truth, utterly destitute of
any solid foundation. It applies with the snuie force to the State
legislatures tut to that of the L'nioo. It attributes to talents and
wealth and nrabition an ioflueace which may bo exerted at all
times and everywhere. It speaks in no doubtful lantniage that
republican gorumnient ia but a shadow, and incB|)able of pre-
anriog life, liberty, or property.* U supposes that the peopl«
are alwaya blind to their true interesta, and always ready to be-
tray them, that tlioy can safely trust neither themselves nor
others. If such a doctrine be maintainable, all the constitutions
of America are founded in egregious errors and delusions.
{ 6C7. The only perceptible difference between the eaao of a
reprcaentative in Congress and in the State Ivgialaturo as to this
point is, that the one may bo elected by 6ve or six hundred
■ Til* FoUnlUt, No. S7.
• Id. Ho. 57 i 1<L Km. U, tt.
■ Th» Fedenlbl, No. G7.
• Id. So. »7 ; Id. NiM. SSk M.
484
coNSTmmos op the rotted states. [book in.
citizODS, and th« other by as many thonsands.' Etcti this is troe
only in pnriiciilnr ^taKs; for tiie repr«8«ntati?cfl in Maasacfao-
»ctt« (who are all chosen by the towns) may l)e elected by six
thoitsaiid citiwnit, n»y, by any larger number, according to thsj
population of the town. But, giving the objection its fuU
oontd this circumstance make -any solid objection? Arc not the
seuatora in aevoral of the States chosen by as large a number I^
Have they been foimd more corrupt than the reprvHtrntatires I
Is the objection supported by re«wn/ Can it be said that five
six thousand citieens arc tuoro easily cormptod than fire or six'
hundred ?* That the aggrpa:ate mass will bo more under the in-
fluence of intrigue than a portion of it ? Is the emueqttrmet de-
ducible from the objecti<Hi admiMible? If it is, then we
deprive the people oi all choice of their public eeirants, In atll
eases vhere numbers are not required.* What, then, is to Im
done in those States where thv ^rcrnors are by the State con-'i
stitution to be chosen by the people i Is the objection warranted''
hyfaettT The representation in tlio British House of CommoDS
(as has been already stated) t-ery little exceeds the proportioa of
one (or tvcry thirty thousand inhabitants.' Is it tme that the
Hoas« of Commons ha\-« ele\-at«d thcmselros upon the rain of the
many ? Is it true that tlie representatives ol borou^ hare b«s j
more faithful, or wise, or honest, or patriotic than those of ciUea I
and of counties? Let ns ooue to our own country. The di»-<
tricts in Now Hampshire, in which the senators an chosen im-
mediately by the people, are nearly as large as will be Deceaasiy
for her reprcMntatires ia Coognas. Those in MasaschusBtts ^
come from districts having a larger popolstioo, and those in
New York from districts still larger. Id New York and Albany
the members of assembly are elected by nearly as many nitara as
will be required for s member of Coagnwe, calenlating on the
number of sixty-five only. In boom ol tbo ooonties of Pennsyl-
vania the State Te|>resentativY>s are eleetcd in distrlels nearly as
■lurift as those required for the federal representstires. In the
eity of niiladelphia (eemposed of sixty tfaoosaiid iahshilnntB) .
every elector has « rifdit to TOto for esoh of the re|maeaXattTes
in the State legislslure, and aetnally elects a singie "*—'*'" to
tfaeexeeultve oanaeil.* These ate teets which danoostnrts tfa«,
• M. 5m. M, ST.
■ U. It*. ST.
• Id. Xft (I.
•U.Vii.st.
CH. IX.]
B0D8I OP BEPRBSBNTAHVES.
485
faUacr of the objoction. for no one will pretend that the rif^ilitfl
and liberties of Uiene States are not as well maintained amd u
well underatood by their etenatora and representatives us thouc of
any other States in the Union by theira. Thero is yi-t one
stronger case, that of Connecticut; for there one branch of Uic
k'^islature is ao cooatituted that each member of it is elected bjr
the whole Rtatt-,'
§ CCS. The fPiDaining objection was, that there was no se-
curity that the number of memlwrs would be augmented from
time to time, as the progrcfiu of tht- population might demand,*
§ 669. It is obvious that this objection is exclusively founded
upon the supposition that the people will be too corrupt^ or too
indiffereiitf to si-k-ct proper ropresentativra, or that the repre-
sentatives when chosen will totally disrei^rd the true intermts
of their constituents or wilfully betray them. Either supposition
(if the prccedinj^ remarks are well founded) Is oquully inudiniiui-
ble. There are, however, souie additional consideratioos which
are entitled to grcAt weight. In the first place, it is observable
that the federal Constitution will not suffer in comparison witJi
the State constitutions in regard to the security which is pro-
vided for a gradual au^mentutiou of the number of representa-
tives. In many of them the subject lias been left to tlie discretion
of the k-gislature. and csporioucc has thus far demonstrated
not only that the power is safely lodged, but that a gradual in*
crease of representatives (where it could take place) has kept
pace with thui of the constituents. ' In the next place, as a new
census is to take place witliin every suocessivo ten years for the
avowed purpose of readjusting the rspresentation from time to
time according to the national exigencitrs, it is no more to be
imagined that Congreu will abandon ita proper duty in this re-
spect than in respect to any otlier power confided to it Every
power may be abused, every duty may be corruptly dfsvrtcd.
But aa the power to correct the evil will recur at least bieuniuUy
to the people, it is impossible that there can long exist any pub-
He abnso or dereliction of duty, unless the peoplu connive at
and encourage the violation.' In the next place there is a pecul-
iarity in the federal Constitution which must favor a constita-
> Ths P«aon1i>U Ko. S7.
t ThB FsUniUt. No. U I 1 EUiot'i DcUtM, *M. Ml.
■ Tht Fnknliit, Ho. M. * t EHMt'i
4M
CONSnTDTIOK OP THB tTXtTBD STATES. [BOOK tn.
tlonal aii^rmMitation of tho rcpresratatlTcs. 0»e branch of the
Datioiinl li'^cislature U elected l>y tltc people, the othi>r hy the
States, tn the former, oonsequentJ^, tlie laf^ SUtOB will bare
mora woight, in Iho latter the tuimller States will have the ad-
vantage. From thi^ cm'um.4taiioe it may Ite fairlv inferred that
tbe larger States, and epeciallr thone of a growio^ population,
will Iw strenuoiift adriK-atea for incrcasitiK the uumber and wei(
of thnt part of the legislature in which their inllm-aco
dwuinates.
§ t>TO. It mav 1h> said that there will be an antasrontst infla-
cnce in the Senate to prvvent an ant^nentatioo. Bat, upun a
ekae view, thU objection will be (onod lo low moat of ita weight
In the first plaee, the Hooae of Bc|inMntat4««s, behie a oo-or
aate brauefa, and direetlj cmBnatiag from tiie people, and sf
bag the known and declared mbh of the majoritr of the peopla^l
will, upon errrr qi>raiioo of this natiue, have noamall
a« to the means of iufltienee and iwigtaaee. In the next pli
tiie contest will not be to be decided laerai; by the rotes of i
SMet and imall Siatm, oppoaed to each olfaef^ bat by States
TBtemediate sixe*, approaching the two nUimja bjr
advancva.' Her will aaturallr arrange tbraaelvci on tibe
side or the other, aceordin^ to circumitaBoca ; and eannol be
ealcolated a|x>n w Meatified pesmaaeMiv vitb eiifaer.
in the new Stataa, and dnw wtaar pofolatMB n
whethei tber are preat «r small, Aere will be % eaaataat t«ti-
iiiiij III fa ^iwiBliliiwiii irf Ihi maiwliiiiia. wi, ii
tike largv Stidea mtj mmf^ H br maVlM^ iiiaHinliiMwi i<
aiHiwLiBftia— Ml— 1 mlitiiii «( wdi cAer.* la the thM
n»«f ■^iiMiBliiliiiii vOl feme
rf ftupiaifiii i^pHM iar ^ wm^ ^
ia iAerwvf*k. H win faeW the iMt-auiM* id tfca
■l^ireit a piiwatal afkaaoeaitlMeipanliaBaif '
Itricraam." TV B<
lwiwaadM|t«
mUkt
CH. IX.]
BODSi or
LT1TB9.
487
I
I
§ 6T1. Such ia a brief viev of the objections arged agalost
this [lart of the Constitution, and of the answers given to them.
Time, as biia been already intimated, has alreadj* settled them
by itH u«-n iircsistible demonstrationa. But it is impossible to
withhold our tribute of admiration from those enlightened state**
men wliuxe profound rewoiiin^ and mature wisdom enabled the
people toiH-u the true path of safety. What was then prophecy
and ai^nic-iil hiw now bceome (act At each aticccssive cousiia
the number of representatives has been K^tduully auirmcnted.^
lu 1192. the ratio «tlo|jtcd was 88,000, wliicli gave an a^rcf^te of
one hundred and six representatives. In 1802 the same ratio was
adopted, which gavQ an a^^gate of one hundred and forty-one
members. In 1811 the ratio adopted was 85,000, whieh gavo
an abrogate of one hundred and eighty<oae membeis. lu ISii
tite latio adopted was 40,000, which gave an ai^regate of two
hundred and ten membei's. In 181J12 the ratio adopted was
47,700, which gave on aggr^ate of two hundred and forty
members.*
§ 072. In the mean time the TToufte of Representatives has si-
lently acquired vast intlueiice and power over public opinion by
its immediate connection and sympathy with the people. No
complaint has l>oen urged, or oould now with truth Ik urged, that
it did not understand, or did not represent, the interests of the
people, or bring to the public councils a competent knowledge
of, and devotion to, tlte local interests and feelin^^ of its con-
stituenlii. Nay, so little is and »o little has tike force of this ob-
jection been felt, that several States have voluntarily preferred
to elect their representatives by a general ticket, rather than by
districta. And the electors for President and Vice-President are
more frequently chosen in that than in any other nuuiner. The
representatives are not, and never have been, chosen exclusively
from any hi);h or privilegod cUuis of society. At this moment,
and at all previous times, the House has been composed of men
from almost every rank and class of society, — |>lanter8, farmers,
manufacture ra, mechanics, lawyers, physicians, and dinnes; tlte
rich and the poor; tiic educated and the uneducated men of gen-
ius; the young and tlie old; the eloquent and the taciturn; the
> Act of 17»S, ch. 21 , Aet<>riMX«h-li jlet of ISll.ch. Bj Act oTlESa, dkU)
1 Tack. Blick. Cuiiini. App. 190 ; lUak on Ccnuitntioii, ii.
* A<4 a( SM H«y. Uti, (di. »l.
4S8
CONSnTDTTOK OP THE UNITED STATES. [BOOE III.
stateaman of a h&lf-ocntar;, and the aspirant juat relcatscd Iroos*
bia academical stadiea. Merit of every sort has thus boon able
h) aasert its clainia, and occasional!}- to obtain its jiist rewards.
And if an^ complsint could justly be madv, it would b« that the
choice had sometiaes been directed by a spirit of intolerance,'. J
tfaat foT^t everything but its t>«-n creed ; or by n spirit of party,
that remembered evcrytbitiif but its own duty. Such intirmities,
however, are inaopambli,' from the condition of human natore;
and their occurrencv provc« nothing more than that the moral,
like the j^raicol, world is oocasionalty visited by a whirlwind
or deluged by a storm-
§ 673. II remains only to tako notice of two c|ualificatioa8 of
the general principle of rcprcMontaiion, which are ingraft^ oa
the clause. One is, that each State &ball have at least oae rep-
resentative ; the other is that already quoted, that the number of
representatives shall not exceed one for every 30,000. The
former was indispensable in order to secure to each iStntv a just
representation in each branch (d the legislature; which, as the
powers of each branch were not exactly co-extensive, and espe-
cially as the powLT of ori^nating taxation was exclosively veated '
in the flouse oC Representatives, was indispensable to preserve
the ei|uiility of Ihc small States, and U> reconcile them to a sur-
render of their sovereignty. This proriso was omitted in the
6nt draft of the Constitntion, though proposed in nne of the
preceding resotutioDS. ' But it waa adopted without rosistancQ
when the- draft passed under the solemn discussion of the coaveo-
tion.) Tlie other was a matter erf more controveny. The urigi-
Bal limitation proposed was 40,000;' and it was not until thd
very last day of the session of the cooTcntiun that the number
was reduced to 30,000.* The object of fixing some limiiauun
was to prercnt the future existenoe of a very numerous and un-
wieldy House of BeprcaentatiTes. Hm friends of a w-tiffnal
government had no fears that the body would ci-cr beocoie toa
small for real, effective, protecting servioe. The danger was,
that from the natural impulses of the popular will, and the do-
sire of ambiiioofl eaadidatos to attain office, the number would
1 TiiH—1 if nwilhw. u:, IS^ 90*. zu.
• twi— I at OwwUea. Stfc Aag. p. nt.
» JoBiatltt Oamwmtkm. UT. 3U, Sas. SM.
« JcMwd it CmtmumL, ITA Sip. im. f. MS.
OH. IX.]
H0U8B OP BEPRESKNTATrvKS.
48«
N
»
be MOD swotlcQ to un uiirt-aMOnublc ftiic, »o that it would at once
gCD(!rftt« and combine factiuiw, obstruct dulilx-TatiuiM, aiid intro-
duce and perpetuate turbulent and niali couUflclH.'
§ 674. On this subject let the Federalist speak in its own fear-
leM and eiprcssivc Innguagot "In all legislative axKeiublies, the
greater the nnml>er comitosing them mar be, the fcwvr will the
men be who will, in fact, <]irect their proceedinga.' In ttie Gritt
jilaoe, liie more numerous any a^flemblj* majr be, o( whatever
charact«i-8 comiMwed, the greater is known to be the ascewlency
oi pSMion over reason. In the next place, the larger the num*
ber, the greater will be the proportion of members of limited
information and weak capacities. Mow, it is precisely on char-
acters of this description tliat the eloquence and address of the
few are known to act with all their force. In the ancient rc-
pablica, where the whole body of the people assembled in per-
son, a Hinglo orator or an artful statesman was generally seen
to rule with as complete a sway as if a sceptre had been placed
in his single hand. On tlie same principle, the more multitudi-
nous a n^presentative asHcmbly may be rendered, the more it will
partake of tho infirmities incident to coUecttve meetings of the
{)cople. lirnorance will be the dnpe of cunning, and passion the
slave of s<>;>)iistry and declamation. The people can never err
more ttian in supposing that in multiplyini; their representatives
beyond a certain limit they strengthen the barrier against the
government of a ievr. Experience will forever admonish them
that, on the contrary, after securing a aulTicicnt number for tbe
purposes of safety, of local inforniutiun, and uf diffiutive sympa-
thy, they will counteract their ovm views by crery addition to
their rvprcsenlativc!!. The oountcnance of the governiikcnt may
become mure dcmt^cratic, but the soul that animates it will be
more olit^rchic. The machine will be enlarged, but the fewer,
and oUvii tho more secret, will bo the springs by which its
motions arc directed."'
> ] tJerd'iDetalMialTM, m. »4:S )Ja]rtl'*D"l>l*%lSS.1SS, IBC, ISS, ISO, IM.
■ TS* Mini* tlunttlit in i<x[mm<l oilh tlill ffion fwvo tii tht AncricaD pwpfalet,
enilDnl Thtnifi^U uimi tha rolitioU Situatk-n of Anmin (WoieMUt, ITU). DL
* TW Fodenlbt, No. aS. Ur. Anm, b • debtta in CongiMi, in 178^ on hdmuI-
ing llw GoMthutMii in tfgtiA to rtpraattatloB, obwrred, "Bj (nlu^ng Uia npn-
■cnlBtiM, wa tMMn tbt cliUK* of NUctlnil nxa «f Um groatett iriidiow aad iWHttw;
litounr amtl\ Hurkvt omt b« tonJuctrd bjr (ntrtjn* ; but In UigD <liatricb oothiag bat
nal di|ultj ar cbuMUr na mciu« u tlMlioB." S Uaji't D«bkla^ ISL Unfmtu-
490
OOKSTTTCnOS OF IHB tIKnXD STATES. [BOOK
$ 675w As a fit c<meluai<m of this p*rt of the subject it ms; be
remu-ked that Conpvaa, at its RrHt cesaian in 1789, in pana-
aiice of a d<^ire expressed by sereral of the State conventioos in
favor of fuKher declaratot? and restrictive ameadtncnts to the
Conatitalioii, propnecd twelve additional articles. The first iraB
on the verj aohject now under consideratioa, and wtu expreesed
in the following terms: "After the first eiiumeraliou. required
br the first article of the Coii&tttiitiuii, thcrv shall be one repre-
sentative for every thirty thousand, until the number BbmU'|
amount to one hundred; after which the proportion shatl be bo
regulated by Congress that there shall not be less thao ouo hun-
dred r^resentativea, nor legs than one for every forty tbooaand
persons, until the number of represeutat ivos shall amount to twoj
hundred; after which, the proportion shall be bo regulated by.
CoDgreBS tliat there ahall not be less than two hundred represen-
tatives, nor more than one representative for every lifty thou*,
sand."' This amendment was never ratified by a competent
number of the States to be incorpoisted into the Canstitution.*
It was probably thou^t that the whole aubject was safe where it
w«8 alr^^dy lodged ; and that Congresa ou{^t to be left free to
exercise a sound discretion, aceording to the future exigencies of
the nation, either to increase or diminish the number of repre*
sentutivcs.
§ 676. There yet remain two practical questions of no incoo-
sidvruble Importance, connected with the claasc of the ConstitD-
tirm now under consideration. One is, what are to be deemed
direct taxes within the meaning of the clause. The other Is, in
what manner th^ apportionment of representatives Is to ho madeh-
Tbc first will naturally come under review in examining th«-
powers of Congrrss and the constitutional limitations upon those
powera; and may, therefore, for the present be passed over. The
otiier was a subject (4 much discussion at the time when the fii
apportionment was before Congress, after the first eensoB
taken, and has been recently revived with new and inc
interest and ability. It deserves, tberefon^ a rcrj- deliberate^
examination.
MUlj, tbr npniraot of IW CaUed StslM W Mt jMtifiod tkt UW t&st tngt S»-
tokU win always chosaa m*u of Um gnMMt >lida«, ability ud ml d^ntf.
t jMnwl td CaanaUoM, A«. 8«i|ip. Ut to 441.
*Tbrd«bau> uiC«agnMMiiU*MMSda«l«iU be fouad ia S Lbjd'a DA
lS3tol»l: 111. UO.
CB. IX.]
BODSE OP BentESENTATtTES.
491
I
»
S 077. The language of the Constitution is, timt " representa-
tives and direct taxes shall be ap|iortioued nmong tJie several
States, Ac, accenting to their renpective auml)ers;" and at tlie
first view it vould not seem to involve the slightest dtfhcultj. A
moment's retlectinn will dUsJpate the illusion, and teach us that
there is a dtlKculty intrinsic in thevcrf nature of the subject.
In ref!ard to direct taxes, the natural course would be to assume
a psrticular sum to be raised, as three millions of dollars, and to
apportion it aiuonK the States according to their relative nuub
bi-rs. But even here there will always be a very amall fractional
amount incapable of exact distribution, since the numbers in
each .State will QG\-cr exactly coincide with any common divisor,
or (pvc an exact aliijuut part for each 8tato without any remain-
der. But, as the amouut may be carried thruuf^h a long scries of
descending money fractious, it may he ultimately reduced to the
Bnullest fraction of any existing or even ima^inar}- coin.
§ 078. But the difTiculty is for otherwioe in regard to repro-
scntatires. Here there can he no suhdivinion of the nnit; eaeb
State innst l>e entitled to an entire rcpreacntative, and a fraction
of a representative is incapable of ap{)ort)onment Vet it will
be perceived at cmce, that it is scarcely possible, and ecrtaiuly
is wholly improbable, that the rctativB numbers in each State
should bear such an exact proportion to the af^rregatc that there
should exist a common divisor for all, which should lea^'e no
fraction in any State. Such a case never yet has existed, and in
alt human probability it never will. Every common divisor,
hitherto applied, has left a fraction, greater or smaller, in every
State;' and what has been in the past must continue to be for
the future. AsHiimo the wliole population to be three, or six, or
nine, or twelve millions, or any other numl>er; if you follow
the injunctions of the Constitution, and attempt tu apportion
the representatives accoixiing to the numbers in each ii^tute, it
will be fmind to \in altsolutely irapoasiblo. Tliu theory, however
true, 1>econies practically false in its application. Each State
may have atisigned a relative proportion of representatives up to
a pven number, the whole beint; divisible by some common di-
visor; but the fraction of population belonginiB: to each beyond
that point is left unprovided for. So that the apportionment is,
at In-st, only an approximation to the rule laid down by the C<m-
1 8n B Manluari Ufc «f WmUdsIob, di. ft, p. 81>.
4»2
coNsrmrnos op thb unttko btates. [book in;
sUtotioD, and Dot a strict compliance vith the rule. Tbe trac-
tion in one State may be ten times aa great as that in another;
and 80 may differ in each Ht&te in anj aasigusbte mathumatical
proportion. What, t3»en, i« to be done? lathe Constitution to
be wholly disregarded on thi» point ? Or is it to b« followed out
in its true spirit, tJiongfa unavoidably differing from the letter,
by the nearest approximation to it? If an additional rcprcacQ>
tativc can be assigned to one State beyond ita relative proportiuit'
to the whole population, it is equally true that it can be asaiimi'd
to oil that are in a aimikr priMlitramcnt. If a fruction admita
representation in any case, wbat prohibits tbt- upplicatiun of
rale to all fractdons? The only constitntional limitution
to be that no State shall hare more than oni- n-pt\-M!ntative for
every thirty tbouiumd persona. Subject to tiiis, tiic truest rule
seems to be, that the apportiotuncnt oiijifat to be the Dearest pra^
tical approximation to the terms of the Constitution; and the
mle ought to be such that it shall always work the same way in
regard to all the States, and be as little open to cavil or coutro*
Tersy or abuse as possible.
§ 679. But it may be asked, what an^ the first atepe to be
taken in order to arrive at a constitntional apportionment?
Plainly, by taking the oggrt^te of population in all tbe States
(according to Uie constitutional rule), and tJicn ascertaining the
relntiTO proportion of the population of each State to the papii*-^
lation of the whole, lliis is nccceaarily so in regard to direct
taxes ; ' and there is no reason to say that it can or ought to be
otherwise in regard to representatives; for that would be to con-
travene the very injunctions of the Constitution which require
tbe like rule of apportionment in each case. In the one, the a^K ,
portionment may be run down below unity ; In the other, it cao- fl
■ " Br till) CoaititotiDa,' mjt itt. Oiirf Jnitk* XuikaD, to dathrrlnx tlin ofdaloB
of thccfKut. "dinxt texttlaa, Ja to >;»plk«tloa teStMw; thaU ba tppnrttoiipJ toniua-
ben. tbpraMiiulioa it Mt muh tk» faiadattoB «f UcaUna. U, midar Um ennnwi*-
tka of B rtfUotnUtlT* tat vftrr Uur^ tboiuul mvIk «» St«t« bad bcM Itiiwd u
oanuln C9,om wd methn 60,000 th* fint voald Imtd bcw catjikd t» oaij oh Rprr-
HDlativv, wiJ Uie hat to two. limr tmxn, homvor, wouU doI bar* bon m em* to
two, ImtMfitty-tunelOHXt):.'' Leajcboroafh «. BUk*,5 Wbnion'a R.S17, 890. Tbit
i* ptHtdtf eomct, bocauM UMConMitntioa {mhibib mora tliui our raprannUtirB for
cMtySO^DOa. RsttfoM State fiontun 104^004 (ouk and anoUua 800,000. UierabM
lagic; wUcb, ooMbtontljr wiik oMMiiDa.aeMe ot Jaatkc, etnU, n|iso anjr oonititadntHl j
■p(«cticniaiEat. inigB Uu«« wpumtatlw lo an* aad mvm t» iIm vtWr, uaj mm ibaft j
it oonU of a direct lax tba psfottioik of tbnc lo «m aad atton to Uw othir.
CS. IX.]
HOUSE OP BSPRESBNTATITiS.
498
not Bnt this does oot change the nature of the nilc, but ouljr
the extent of ita application.
$ 600. 1q 17U) a bill was introduced ioto tbc Hoiuc of Rup-
reaentativee, giving one representative for every tliirty thousand,
and leaving the fractions uorepreaentcd ; thus producing an iu-
equality which waa greatly complained of. It paaaed the House,
and was amended in the Senate by allowing an additional rcpte-
Bcntative to tlie States having the largest fractions. The Bonw
finally concurred in the amendment, after a warm debate. The
hialorv of these proceedings \» siunmarily stated by the biogra-
pher of Washington as follows: "Constniing," Bays he, "tl>e
Constitution to authorize a process by which the whole number
of reprenentatives should be ascertained on the whole jwpulatioo
of the United States, and afterwards apportioned among the sev-
eral States according to their respective numbers, the Senate
applied the number thirty thousand, as a divisor, to the total
population, and taking the quotient., which was one hundred and
twenty, as the number of reprcaentatives given by the ratio which
had been adopted in the House, where the bill originated, they
apportioned that number among (be several States by that ratio,
until as many representatives as it would give were allotted to
each. Tlie residuary members were then distributed among the
States having the highest fractions. Without professing the
principle on which this apportionment was made, the amendment
of the Senate merely allotted to the States reapectirely the num-
ber, of menil>crR which the proc«ss just mentioned would give.'
Tlie result was a more equitable apportionment of representa-
tives to population, and a still more exact accordance than was
found in the original bill with the prcvoiling sentiment which,
both within doors and without, seemed to require that the popu-
lar branch of the legislature should consist of as many members
as the fundamental laws of the government would admit. If the
rule of construing that instrument was correct, the amendmeDt
removed objections which wore certainly well foimded, and was
not easily assailable by tbc advocates of a numerous representa-
■ Th« woti* of Um bin nwn^ " TKtt fram mi i/tw tlu tUnl iaj of HMtb, ITtt,
tbc Boius of lUptMMMivM •bill UconipoMd«f«M handled ndtVMiir^tvMi m«m-
%«n, ekcttd nthin Uw tmnl OMm ai>a)r<liag to tha foUowiaf kpportieaiMat, Uwt U
to Mjr, witkra tbe Steta of N'aw- tlktiifahin An, witbin tb* euia tt UmmOnrnm 4z-
t««s," Ac, mnmtnttiig 411 the SuMi
4M
CONSTITUTION OP THE ITNiniD STATES. [BOOK nt.
tire bodj. But the mle wu novel, and overturned opioioiu
which hud been ^ncrully assumed wid were supposed to be
settled. In one brancli of the legisUture it bad been alreftdy
rejected, and in the other the majority in its favor was ojilf
one.
"I
§ 681. The debate in the two house*, however, vraa purely
political, and the division of the votrs parelj- geoirraphical ;
Southern SUitcs votiqg against it, and the Northern iu its favor.'
TIio President returned the bill with two objectiona : " 1. That
the Constitution has prescribed that representatives ahaU be ap-
portioned among the several States according to their respective
nunthera; and there is no proporticm or divisor which, applied
to the respective numbera of the States, will yield the number anij
allotment of repn'sentativcs proposed by the bill 2. The Ct
stitution hag also provided that the number of represcntadi
shall not exceed one for thirty thousand, which restriction is by
the context, and by fair and obvious construction, to be upplied
to the several and respective numbers of the States, and the bill
has allotted to ciRht of the States more tlum one for thirty thuu-
Band."^ The bill was accordingly loet^ two thirds of the House
not being in its favor. It is tmderstood that the President's cab-
inet was greatly divided on the question.*
§ 682. The svc(»)d reason assijirned by the President against
the bill was well founded in fact, and entirely conclusive. The
other, to say the least of it, is aa open to question as any ono^
which can well be imagined in a case of real difficulty of £00.-
Btruction. It aJMumcs, as its basis, that a commun ratio, oti
dirisor, is to bo taken and applied to each State, let the froctiona
and inequalities left be whatever they may. Xow, this Is a
plain departure from the terms of the Constitution. ]t is Qoti
there said that any such ratio shall be taken. The language i^
that the reprcseutativea shall bo apportioned among the aeverol
States according to their respective numbers, that is, according.^
to the proportion of the whole population of each State to tbe
aggregate of all the States. To apportion according to a ratio
ahort of the whule number in a State, is not an apportionment
1 S Utnlttll'* Ufa t4 WhUmsUD, eb. fi, pp. tt). 831
• i JefTnnon'* Coimfondinie*, 4M.
• S UartUla Ufc of WMUi^toii. ch. S. ^ ttl, note
• U. ]■■ 823 ; 4 J«IEn«m'* Camqmdmei^ iaO.
HOUSE OP BEPRESENTATtVES.
im
aecordinfr to tlie respective numlwrs of the State. If it ia aaid
that it is imprnctiuablo to follow tho moaniti^ of the terms lit-
erally, tliftt majr bo ndmittod; but it dow not follow that they
are to be wholly dinrogurdcd, or luofrua^ substituted essentially
different iu i(« import und vfluct. U we must depart, wo must
depart M little og pmcticablc Wc arc to act on the doctrine of
cif pri», or come as nearly a» possible to tho rule of the Constitu-
tion. If we are at liberty to adopt a rule vuryio^ from the tenoB
of the Constitution, arjpjiui; ai inconvenienti, then it is clearly
juett as open to otheni to reason on the other side from oi^MMlnK
inconvenience and injustice.
$ 688. This question, which a teamed commentator has sap-
posed to bo now finally at rest,' has Itecn (na has been already
intimated) recently revived and discussed with great ability.
Instead of pursuing my ou-u reasoning upon this subject, it will
be far more satisfatrtory to (rive to the reader, in a note, the ar-
guments on eJich side, as tliey aro found eoUcctod in the leading
reports and documents now forming a portion of contemporary
faittory.'
§ 6M. The nost clause of tho second section of the first article
is, " When vacancies happen in the representation of any State,
the executive authority thereof shall issue writs of election to
fill such vacancies. "
§ 685. Tlie propriety of adopting this clause docs not soom to
have furnished any matter of discussion, either in or out of the
cunventioii.^ It was obvious that the power oujiht to reside
somewhere ; and must be exercised cither by the Slate or na-
tional go\-t'mmcnt, or by some department thereof, llie friends
I B*«rlB oa OnMUtBtloB, 48 : S kbnhiU't Life oT Waiduiigton, SSI.
* Uf. JalTcnod'* ofilnlon. ginu on tli* >fiportlonm«nt bUl In 1;d2, proat* kll th*
leuling ivMHu ^uBit (Im JuotrlD* ot tiipartionliig tb* r*prM«iiMiv(i* In in; other
Duuinor than hj « ntio without rqpj^ to (mctioiis. It 1) m rellowi : —
"Th* Conxtltutian b** doeknd thtt ' rrprtHDUtirn Mad lUrKt tun ihaU be appo^
tionttl uaeaiK tliawnnlSUtMMMrdii^lo their RtfiwrtiTeiiiiniber*:' t)ut 'iWdidi-
biT of reptntnUtivM tb*l1 not iptotd one bt enry 30^000, bat Mch Sut« thall htm^
at l««it, OM wpw»iUtt*» ; aad, nalll mch MUMDtnttica iImII bo ■•d^ tiM Slata «(
Me« llunHib* ibUl b« nilitled to Aetm Uwm. UMMcliuMlti,' ««.
" Tl» bill for KppoRMfiiiig TtpTMoilatint umng tk nveml State*, iritliowt mqilaiii-
tng *»y prindpli >t all wbi^ in*; Aovite tontoimktj wllli tbe Ooaititntta« «t fpild*
ttttant lippnrttBwnWBt^ myt, thU New HMnpaUm *htll ha«« thiw inomb«n, UMaa-
■hawtti ijitttn, *c VtM«.lh«r«fon,tofl(Kl)>y*<P«ri»ratwhathMbMa thspria-
• JooHMl of Ooavoitka, tV, »7, US.
496
cosBnTtmoji op toe omtted btates. [bimjk lU.
of Stut« powers wuuld natiirally rest ftntislicd with leaving it with
the State ciecittire; and the friends of Die Datioiial goremmcnt
c!iil««t thvbtti; lodowhkli, iiia][mp«rlo4tatFlk«P*don]ornpnw3ita)>b! nmnboii
orfacliBulr, Knd tliB BDmibenaltolKd lottma by tiM bUL Tb^KMu Mbwt: —
Bfi,UI
3
Ncv llanipltira
UI.HE3
a
lioa.wbetliti tried M b«w«M
Haakcliuutu .
4*}^T
ie
enu tuid Bmall 8utM, or m
MtWMD Noitk aoil tloiMb,
Bbode UJiUiil
etM*
a
ConoKticut
fayux
6
jMit, i« Um pwft io-
Nfw Yolk .
3sa.9ii
n
naneo,*tolM»UT]«M nnli,
nA couMqaMUy couM nol
New Jerse/ .
V9M*
e
PtlllDtJ'lvMlia
insMa
14
ba obJtK-Ud U> oa Uiat vionitd,
U It nora obuiatd by iha
I)elawa.r« .
iiASt
1
Mar.vbi>4 .
Virftliiln . .
17MI3
9
ai
BMOai nntcnbod im tbo
CoDMitntltni ; bat, if abtaliMa
K*utiir.kv
w,:«
1
bj MIf pMCMB OM of tbfll^
North ('orDlIiuL
3UJ41
II
Ronlh Carolina
>oe.ts6
T
Oeorgia . . .
T0,»43
3
130
3,636^1 a
"Th« Knt member of thvclauaeof 1h« CannHutko aba** dl*d b*x]>t««, — tiuU
I«]ina«nlat[v«i tlmll b« a|iport!onfld antaog the wnnl SUtca aeoaadii^ t» Ihttr i
tttt nunifn; that b to M]r, the; *b*U b» appeftJotMil bjr aonw DCODBoa nlio, l«Tf>r»>]
fNfKntoiiJ ni(i»*te«quin]aitiKitl*;Mkd U uihedti6nitioatitfnp(irtiiiiiaaMgmtmf\
ttrt, that th«r bur* a raUa «minon lo oN, er, Ui olliw vot^ ■ (ommnt rfMMr. Kow, ;
trill «i11 «hin» (hat th«i« ia no onnnum nriir or diviter irbkh, applied to tbt naaik
of Mcb Slat«, wni (pre to them th« number o( rtprcaenlatirw allHted in thit bill ] (bl^.'
trj-iiig Ihc Rvml nlia» of 29, 3U, 31, 33, S3, the allatinciita woald bi aj faUom : —
w
W
»
11
9
4
14
S
7
11
S
13
1
19
a
11
6
9
10>
S
u
to
13
19
10
lOS
The
Bill
3
le
II
t«
■1
11
190
VMrmoni . .
Kev Hsin|i*hlr«
Mataavlinw'Ua
Rhode lalaod
CiMnKtkiH .
N«ir Tork .
KewJcrHj .
Poniuyli aula
Delaware , .
Maijlnnd ■ .
Vir^tnia . .
Kentuckv . .
K<iKh Carolina
SoBll) CafOllaa
Otwsla . .
9
4
16
a
8
la
6
u
I
e
31
a
13
7
s
IS
11
5
14
ai
ti
Hi
9
4
IS
a
7
il
s
IS
1
H
90
9
1)
6
9
109
Then the bW ib¥I]1Mi
tha masiiwifaml
nrarspc ; becaate,
br ji, teprii— itfc
tlVee are ■« *ppM>
UoMd a«Kin)i the
•c<r«nl StatM ac-
toodlnK to tbelt >«■
■peclire nwnben.
118
" It will be Mill, tbat, thongb for (naxa ther« ina; always be fooul a iliviaor wMrli
wtU ^pertiui then aaeog the Suite aoootdiag to nviubin tmaXj, witlioiit IcaTing
CU. IX.]
HOUBI or RBPSBSEKTATTVIS.
497
woald ac(|Diesce in that arr»ng«inpnt, if other constitutional pro-
visions existed sullicient to preserve it« due execution. The pro-
mj WBWid^n : jtt for ryrcnitoHBc them oui be bo wacb toramoa ntio, or diri«a«,
w\uA, afipMed to the Ktvnd mnabcn, ivill divide tbem ciactly, witbont a mmlaitt
' fnutiDii. I Mxarr, thrn, that (an> mitit ttt diTid«il exaalj/, and nj'imiifiifhiii at
If M thr HmrfM ralM trill wimit, >n>) th« hactlana mult b* ii^t«ct«d ; l«M«ue the
I(C«nstitit11uii wills, ibaotiitflj, that t\un baan afptrtUmmaU «t mniaw raf fo ; and if
Taiij fmiioiu reiuU frani tiin opcntioii, it hu ]«ft tlivm unproviiUtl lot. In Tact, il ooold
' not b«fotE*cet]i«t«iKbfr*ctJanav«tild fault, and itmouit totubmit lolltDm. It knew
thef would bt In favor o( one part of the Union at ode tlnw and of anollirr part of It
at anothrr, to >», in tfa» rod. (o halaaM occaalinial Lnriqiialflia*, Bui, iu«tnid of tu«h a
tingU coiiiriKm mtio. or anifomi dirfaor, aa pmcribtd bjr tbe Comtitnlioo, tlif bin bai
^■pplied two ratitu, it Iraat, to the diflmnt Blatfi, to uit, that of SO.OSfl to the atvm
bllowins : Ithodr Uland. New Voric, PamuDdrania, MnryUad, Tii^nta, Kentatkjr,
Dd 0*OT|ila ; and that of ST.TTO lo the tight »tfa*n ; naniclj Tormoot, IXcm Hamp-
^'Alra, HaaMrbaartla, ConnMticat, Ifcw Senay, DtU'wttt, Iforth Carolina, au<l South
Carolina. At follom r —
t
And
1
Rliod* laland . .
6S.<44
&
i
VarmOBt
»,&»
1*
3
Ktw \<itk . . .
.ISB.lll 5
t
11
N«w IIani|ialili« .
U1.R)t3
ef
S
IVnM.vliHila . .
«S.BM>
14
UaMachoMttn . .
4TG^>T
1^
la
Marrliuid . . .
s;e.MS
%
9
Toanectkul . . .
!3»,1MI
S;
8
Wty^aia. ....
G30.S&!!
i-
»
New ientj . . .
I7«,»M
»^
•
Kcniuck; . . .
CS.TQS
S
Dclawnto . . , ,
n,iia
f
S
0*0^ ....
TO.tMJ
12
1
North Carolina. .
3U.&I)
■s
13
■1
Sooth Ouoliua. .
£06,336
■1
7
O
a
" And if (nv ratioa may be applied, then fiflam maj, and the dixlilbntlon b«ciiaw
arbittaiy, inatcul of bring npportiontd to numbsrai
" Anothn mcmboT of the claoae of tfas ConatllutloD, which hM been dted, aa)« * tfaa
nbta of n^irwrnilaltvfa atiall not n««*d on* for over; SO.OOO, bnt each Sutn ihall
' tian at l«Mt one irjnawntatlva.' Thia laat ^laa* pr»raa that it bad b a>nttBi(da>
tion, that all frwtiona, or namtvw Mmirtkt oMamOKMbA nwalo b* aiir*|<rTwnted ; and
^ftpMTldoapocialljr that, in the OMeaf a State wlHNa whole BQMberihaU be balow iha
nan mtii^ ona rtyreatntatlTt ihall ha f^Tan to it Hiia ia the mj^ iwrtwine vhit«
fit aHowi )*in*wii(>tion to any amatler nombfr than tha conunon ration and by prarid*
ng apadally for It tn thiiv ahowa tt wh oDitentood that, wltboat aptdal inovUon, the
iomUot WiMbw wouU, in thia otae. be inTolred in tha gvMtal firittdpllb
"llMftnrt phr«»eaf the abandtatioa, that 'ihennvbarafTtfrnaBniativfaabatlBot
1 OM ka ovtaj 90,000^' ta violatBd hy thn bUl. whkh ha* ffivon tn dj[ht Statea a
^mnbar asteadinK oM< to erciy M.lMOk to wit, onabrarwy t7,7T0.
*' In annwer to lliia, it U aaid that thia (dunta nay maan ritbrr tbr thirty tboManda
ia nuft jtut*. or the thirty thoDMtnila in the ttMt IHiotj tatA that, in IIm latter oh^U
a(m> only to find the anovnt of the vbolo leimmtatiott, which, in the pment atala
tt poimkllan, I* MM hnadfad and twtaly wiwbwa. Soppw* tha ptirwa m\^gaX baar
both ■aa^^p, whhih will eainMan.aMiM ntiply t« It f Whkh did ih* nnlraraal iu>dai>
atatiding of our oamiltjr apply to it t Which did the Sanala aad lt«pr«atataH*«a afply
to it duriag the ptadanqr of ths KM bill, and wm tfU an Mlfund it^ or Ota Mond
TOt. I- — 1>
•198
C0N8TITUTI0K OP THE CKITE!) STATES. [BOOK in.
riaion, OB it stands, has the atrong recommendation of public
convenience, and facile adaptation to the particular local circuni-
UU, irhtu an iii^ulaua ^-taitUiiiui fouud oat tbt doctrin* or bactioiu, — k dodriiw to
diffioalt and inobvioui u to ti« rq'erUd at Gnt aiglit br tJie *enr ponona wW Mftcr-
WMxLi btcsnie iU mart jmUiui iidrowlM ) Thi: pbra« ■Uails in Ibe midrt of • niUDba
of olh«n, tn^ry odo of vhicb rclatei to Statoi in their Mptnte cspocit;. WUI not iilaivj
conunuu-MUW, tb«u, uiiiUnuad tl, like th« ml of il« context, tor«btat»SuiMliii
•ep*nt« cB{n«iti';i )
" Bnt if tbo pbraM of one Tor 30,000 w oa\j nauit to pit the aggicgiile of i
■tntnttvni, ami not at nil la influoncii their npiwrtionmBnt among the IHatu, tlwa 1
one hiiu<in'd and ftvnly Mnf oneo foiiiid, In order tn ai>iMirtl«« thnn wt pw
t» [li« fumiFr rule, wliiuli doM It ttixivriijtg t» l^ nuntbtn i/ U* mjxdiBi Stau* i ami \
inaat tiikc the nMrul <i>innii»i tfiFuor as tilts rxtioof diatributton, tlut is to ny, llut dii
MT which Bppliud In cverv SuXe, gim to tbcm rush numUn u, added tog*th«t, i
naumt to i'iO. Tlii> n<:uireiit common ratio irill be [band to be SS.HIilj, and will dirtrib*^
nte 119 or Ibe 12i) tomnbert. iMTimgwiIya aingU iMldiMjyone. ll « ill be found,
tm, to plitce 94. CIS fracUoDal nunibersin the eigbl northenimottl Statoi. sad 105,533 to
the sou them mort. The folloiring table shims jl ; —
Vermont . . .
New Hatiipebin
MaoNuhiiMMIa •
Khndn Uluid •
Connerlli-nt . .
Now York . .
New .loTMy . .
Penn*ylTuiift .
TMamue • ■
Marvbiud . .
Vlq^lnia . . .
KoDlucky . .
Ntirtb CaroliDii
fkmth Carolina
Oootgla . . .
141,81-1
479,337
68,444
935,941
353,915
179,5511
433,081)
3,G36,3ri
Keillor
a
4
10
t
8
13
e
IS
55.538
1
a6.«80
3TS.5I3
9
18,:91
630,558
31
t4.M0
6S,IU
.>
IOt9«S
353.511
11
Tjas
S06.S36
7
4.M0
T0,&43
1
13,137
119
FnicUuu.
a:.8i6
2M9I
ia,3'w
10,728
3,OT7
6,019
0,40M
10
309,330
M,«te
toe.Mi
3oi.»a
" Whatever nay ban bean Uw istalion, tl«e effect of nyecting Ike BfM»t di*
(vbick leavN bnt one twMuaiy inwnbw), and wtoptJMf; a diiUnl one {aliieh Imt
ei){bl), li merely to Uko n member from Nev York and Pennaylvaiiia t»A, and glf«
tbem to Vemient aiul Mew llsmf^irr. But It will be mU, 'Th,W \» Blvtnit tnoee tbaa
on* for 80,000.' True ; but hae it not been Ju«t aaid, thai tbe om fur 30.000 (i {
aerlbad oalr to fli llm »ggr«gtU nambw, and Ibat we aro mt to nind It when we i
to aypittiion tbem ninoog the Slate* -. that for tkia we aiurt recvr tn tbr former raltv
which d»trtbiili-« lliem aeoording to the ncmbtn in each State f Bcaid«, doa Bot tha^
Ull itatir ■[^rtiott annng aeren oT the States by the ratio «t U7,770, whldi b i
nwre than oat for SO, 000 1
" W\»m a ptttwa b mtBeftlblo of two laiaidagi, «a oqgbl oeHaMy to adopt
CH. IX.]
BOL'SB OP REPRESENT ATI rB8.
499
BtancM of each State Any general rcgalatioD would haro
worked with ttome intqualitjc,
wbieh vill tiring upoa ni tlie fnrt«t iiic<uiniiijena«i^ htt vt «t^ (hen naulUag bvm
both coniuuclioni.
"Ftuni that inyiof loMch Stats MUMnbcr far *ver]rS<\000 is tbatSuia^iMulu tht
■iu^l« ill cnii villi ill II t^«, ibU thtra kmjf hr liuKr TnL'tlont nnrrfrtitacntad. But it bdi(«
mere hnrinl od which SuIm this *iU (lU, huanl will (ic[n>llM It in Ui» long nit.
"From the other imilti «uetlir th« nufie iiicoDireniciKa. A thvonad owwiHf b«
imo([miHl la proru it. Take one ; mppoM M^t of the StatM b«d 4&,000 InhabitKita
cnrh, mid tli» blhur wTRn 4t,B9t) each, thit ii to af, «ach on* Uh dun mfb of tb«
othnr*, thi' itfui;r>^t<i wvulil W 074,9^8, anil lh« iiumbcr of n-pivnitiitiitiTM, tt nn« ttt
80,000 of Ihv a^n-gitv. Koultl ba S3. Then, tttrr giriu^ uiiv inembrr to each 9lat<^
dUttiliute the lorcu rcBduaiy tntmbrn among the atrni Wgheit fmction* ; and though
the dllFcKiuTa of populKlion Iw oiil)' mi noil, (ho irjimvlitittion woitM bethodonU*.
Hvn • (lagl* Inhtbiluit lb* moni would cmiol m SO,<iOO. N'ur I* thl* caw inianinablo
onif i It >il] twcmblf th« imI mm, ohensTn- thv rrurtiona kspixiii lo W (irtltf r>)u>l
thionsh th« vboie Sutfs. The munbon «f oui ceiuua hap{iBn, by acciiLtnl, to giro
tho fhKtMDi all r«iy MnaJl or reiy gnat, n u to [imdiice ibe strtmneit «ub of is*
ciiDaltly that could posiblj' ban oecniml, and which nuf ncmr occur aKoin. Tha
probaUlity la, that the traction* will gvnvratlr d«ac«nd gradualij from S»,iHt» to 1.
Tha Uiuoiivfd1«ui.'v, lb<-n, of lar^ nnrepmratal fractioui alttndt both o»uftructiont ;
and, while tha moat otnrwa coiutniethin it liable to no otbor, that of the bill iu«u)i
num J and grievous onea.
FneUau.
■at
Sd
3d
41b
Ub
«h
:ih
Mh
Ml
loth
llih
IJih
isih
lUh
IMh
4&.000
a
45,000
S
-tfi.OOO
9
45,000
3
45.000
a
4bfloa
3
45.000
a
45.000
a
44.!I<)'P
44.'JU<)
44,9119
44.999
44.999
44.999
44,99«
IS.000
lt.ODO
15.000
I»,OUO
l».000
1^000
liJXXt
iijm
I4;»99
14,tM
I4.t»
I4.tt»
U.«t9
u,*n
ST4,»3
"1, Ujrau ptrtnlt the Urge traction inoDeSuteloehadaoarepcaeaitatiToforonoel
die mall ftacUana in anothar Slato, yon take frotn th* latter iu ti*ctlna, wUeli ««ull-
tatn real iHpRMUtatko, and luhililiita a Tlrtual rtprraentatiMi of lh« diatna«hi«*d
ftacllonai end (be tBnd«w]r of lhedattrJiM«r rlrtsal rejirfaenlaliaii baa Wa too wtll
dieaiawd aad •p^ndatml bj rwaowing and walrtanoe, en a bnner great oetaritai, 1»
und il«TDlaF<ntfit now.
" L Hha bill doea not mj ibct It fcaa glna tiM teaiduair ttjittaeutaUvga to ft«
500
ooNsnTonoN op the untted states. [boob nf.
$ 686. The next clau»e is, that " the Home nf RepreMrtttatii
shall choose their speaker and other officer^ and shaJI have the
sole pover of impcacbment."
;rw(M/'atfiMu;Uiaii^inl«ct, hliMdone •«. ItwtautolureaToidedertKbll
Uwi JBto ■ ni% l«a In nil^ bM niit on uutbw mniriiiii Pcrba|« It nmy
feiiad the MXl ti*« moM ecnvMiMt to dkltfbuU tbam aattug 1^ KitaUtr Staltt;
■noUMT time amnig ti* larftr Simla ; M oUiar liaw Moonling l» »ay otlMr crakbt'
whiil JngMuitgr atij ui*titU uid the oonibiuilian ef th* day gin MmagUi ta cuT]r ; or
thtj mtj do It ftrWttmrily, fajr open baujpin uid cabaL In iliart, thii ccuutfuction u-
|fada(*t Into CiMf*** ■ Kmnbia or > rcadiw tar tha aatplna tnamlMn. It fOMMtM
■mU of liuMv bat blood, atid nuy at miiw tiini^ wtirai llio fiMtloaa m Ug^ txlMd. '
• diwpwMiewt tetiewi the two bouae*. (o tbe pcrpriiul Ion of tb« Iking, w happciaj
■o> tn PcmurlTBiik MKaibly ; «birBM tb* otliw Mtutfwctka ndooM tbe .
KMiMitt tlvnj-R U m aridiiMtical •ftnlkli, aboM wldab 00 two MM <itt firmlMrj
diStr.
"S. It ItaTta in fall fore* tb« Tjolatkiit of tb« premyt whidi d«dam that i ipniwul^.
ttwa Aalt \tt afjnrtimtd — oog tha Sttim aecoiding to their aumtwi^ tkit bibyi
oauiMon ratio.
"Vfewiiigtbi»taiaithtra»aiwtiiWwi/a«OwM«tti»«wnraaglTtoK«nfaowi^
flipMi'uoa to it* tMnU, it it ■ owewlieraD the PmUMrtvo^l WlM«nM**U(iMStlH«t
I thinl: it u.
"1. Tha non-mar «IU*K^th«bi«lma]nad)r to «aKlt*abclieftbat no Pfwldaat,
will evtr vpntnr* to um It i and, oonaaqtimtly, bu b«ffott«n a daaln to ralna up bantasj
In tlie Sulc legblatVTtB apiiut Oongnoa tbmwn^ off the oontrol of tbe Cwutitutioa. |
"1. It out never bamoiliDCiMpiaaiingtjrcolhepntilletban i&thepNitactloBoft
Coiwtltntlon.
"8. Ho f nTirfons of th« Connitvlfm m m fUBdsiB«iittlI)r dtngntna u tbe tridn
fjiytdaa tbeiiom minibrn,npportioiimcnt,Bnd other dieiunataMcarEapoeting tbam-
aclm, and affrcting their legal •jimlificotioni to l«gi*tat« far tha CTnka,
" t. Thr niajorillrs by shich this hill ha* 1m«d carriad (to w(t, of om tn tha ScMtl \
and tvo id ttii' KmiM of R«pi*«piitiit{r««} ihow huw dlTiiM tha ofinlona mre them
"i. Tli« whole of t<oth hoQtF* admit tbi? Cunslttation will Ixsi tb» otha axpnUon ;
wbtMU the tniiioHtia in both iray it will bmr that of tha bill.
"6. Ha application of any one ratio Uintetiii^lile to tlirpMiile, and vill, tbvefat^
ba ip[i*OT(d; vhtraaa thoManplai oparatioonaof ibiaUU will never beoMnp«ht*df4J
by tliem : and, thMgb they aiy aoqamoe, thajrewinot tpprare wtiat Anjin aoll
Bn-tmitaiid."
Mr. Webator'a report on Ihn aama (oi^t. in the Senate In April. 1832, proatctaUw
Wciing arxamontu on the other ride.
"ThUblU. Ukaall lam on the aaoM anhjeot, miart be Rie«idad aa of m inlereatiBC^
an-1 di'hcala natnra. Itmpceta tbe dMribitioaof poUtleal pomr amrngtheSlatMaCl
the Utiioa. I( b todetavmln* thensmbwaf mifiaavhkfe, fbr Ian jraan t« eem^ mA (
SUM is to poocai in the pajinkr branch of the kfiahMraL In tba opinion of thaooa*]
inittae, there c«a be few or *o •)ua*tloB> vhieh it ia mon il«Brabl« aboxld b« MttM m i
jaM, fair, and aalkTactoiy ptinciplM than Ihii ; and. availing tho—ilvta of tlie btaeftt j
of Ihediaeuaalan wUch IW bfll haa already mdngoDe in the Sanatfttbey have i^<«nl«
it a reaeaed and aaxioai twuridenitioa. Tbr nanh >*, that, in tlttif ofjnion, the Ull
Mighl to he amended. Steing the dJAenltiM whkh helonn to tha wboln aahjact. ihaf
an tally coaviacad that tbe Ull baa baon framnl and paaiaad in tba otbar hooM^ wttb
CB. tX.]
nODSE OP REPBESENTAnVES.
601
§ 687. Eftcb of these privilogM is of Rreat pntctical value
uid iinportai]C& lu Uruut Brituiii tliu llouiu.' vf Commoa» elect
their own spvoker; but he uiiut be appruvod by tbv king.* Thia
thciiocaNBtJMratoovtrcomA tlMtNdifficulti**, knd U>rnaoI m law which nhoiUd ilow
much Ju»Ui^ M iMMiUc to mU Hi* SuU*. But th* (uumiiltw arc uouitnuutJ to lajr.
iku ihi* »l>J«rt *p|>r4(v la tli*ni iiol to haT« bota atUiaod. Tl» unequal ojitniliieo el
til* bill oa wnw of the Dtalu, ihould it beooma a law, k«ii» to th« commltlM mou
manifan: and thcjrcuinot bat ciproM adoabt. whotherltt ftctuftlapiwrtiniiCD'utortliB
npraMotaitiTo |w«cr uuang tlio Mvonl StMm can b« tmwiil«nd m i-oufaniuUc to tbe
•Iririt of the C«iutilutiuii. Tliu bill pruvkiM that, bom and after th* Sd of Uaiek,
1831, the HouH of ICcpTMEUtatii-a Anil U compMcd of ncmban^ olectol afnttblr t*
■ lalia d onn nprowiitatiTc for crtr; foitj-tcvra tbonaand and mtau huidred pcmona
in cash Suta, coniput«l acsanling to tbt tula pn*crib«d bj tb» Omrtitntioa. Tlw
aiMUioa of Uw Mwa bundnd %» lb« Un\j-«trta tbooMiid. in the MupcMitioii a[ tLia
ntio, produca nocOMtwluUTor in ngud U the oMiHitBtiun of thr. Elouat. It lulllin
ail>l> to, »ui take* btm, the Duiutnr «f nenben uugned to any Slate. lU mlj eStct
u a Rdoftion of the appaimt anHmnt of t^ frnctioni, u the; an nraallj <all«4, cc
naUuarr mcmbsta, after the ajiplirolkiii of tho ratio. For all ath«r pari*D«M^ tbe nault
h pwcbUj tba aama ■» il the ratio had Wa 47,000.
" A* It tMHU fpnaralljr admitted tbtt iiiequaliiiea ilo *xi>t in thU bill, and that ii|ja.
rioiu cMueqiwnoM will arin tnim it* opcntion which it would W dciirablc lo tvrrt, if
any propct meuit of anrttng thcu without pivducing olhcn cqiutly lojurioua could
be foaad, ibe ocaniniUac do not tiiiiik It neceuory to go into a Tall and fanicular uate-
iDtnt of ihde eonteijneiioea. They will rontrnt tlioiimclvra witli prwontkcig a fiw fx-
aniplta only of ibtae naolt*, and cuch an Uiry hud it luoit dilEculL U> rccoccile with
jaatiiM and the ipirit of the Otnrtitutioii.
" In nbibiting theae tatnfitm, the commitlae mimt naenMrtiy ipaak of partlcolar
Blatra; but it u liaidly nwotiiHry loiay, thai tb«y aiiMlt of llieuiaiKzaM^Mouly, and
with the moit perfoct reiiwct, uot only for tlie Slatn IhoaiMlvR^ but for all tboM wh»
rrpiriH'til thrni hurt.
" Alllioii^h th« bill doM not conunenca by filing the whole naDtbtr of the propoatd
Iloiua of BcpreHnUticpx, yol the pracaaa adoptai by it briny ont tba nambtir «f two
hundred mid forty nicnibcn. Of th«*« two hundred and forty meailata, forty an
aaaifcnnl ta th» Stale of New York, tlut ii to my, pnwiacly ono-HXtli fait of the wboLtk
Thii aaagmmnt would mviii to irquira UmC Kew Tork abould CMitaln onc-iUtli jkrt
tin wbob popnUtioD of Iho l'iill«<l SlalM, and would bo bound lo pay ooe-uxth part
of all bet ditrct taxea. Vet avitbtr of thoM U tbv cava. The whota rrprotnlallTa
population of the I'oitrd SutsU ll.»»,005i tbatof Ktw York it l.MA,<», which i«
laaa than onv *Uth of tho whole by nnuly lO.OOO. Of a direct (ax of two fcoadnd and
forty tfaouaand dolkn, K*w York woaU pay on]y9U,M0. B«t il^ iutaad cfosnpar.
ing dw anmbeis awipinrt to New Ynik wilb tha whota nnabcn of Iho houn, we oom-
pan bet with olhcf Stalca, ttw inequality is »tlU bmc* aTtdairt and atriUng,
" To tba Mato of ytmont tU* bill aaagna Sr« mombBta. It gital, tlunbt*. algbt
tjmf* ea many lapnamtatiiM t« New York aa to Vrnnoat i but the popUatka of N*w
York U not »iual to ilgibi liinea tba po|mktion of V«(inont by toon than thm ban*
dred ilton«an<L YtrmMit hat At* iMBban only for S80,U7 pMaona. If the nme pw
potlton werato baapplinl to New York, it woald radsM tlia unmbtr of brr mMnboia
fnim forty to (Aur^^vr, maklaig a dilbrtaiM mar* than aijiul to tba whola tafitaatBta-
502
COSSTITUTIOK OF THE UXtTO) STATES. [BOOK lU.
approral is now alto^ther a matter of course ; but ancientlr, it
aecniR, the king intimated bis wish previouslj^, in order to aroid
tiou of Vcnnont, uid Rur« than Biiffidiaiit to overcam* har whote power in tto Boom of
BoiiroMiiUtivM.
" A <ll«pio]>ortion BlmMit oqutllj atriking b imnitwlind, if w» oomptM If«iT Totfc, ,
with Alabuna. The populatiou of Alalaiua ia itt.iOS ; for tkia, Ott a allowad if
■nembon. Tha tdIc of pnporium wlikli giro to bar but 6r* m«mbm for tux nnmber'
would giva la Now Yoik bat thirty'iii for her inimbtir. VH Xew York recxirca fonjr.
At eocDpared sitb Alabami, tb«n. Now York lioa an axotaa ef rvprMonUtlon viiual I9 j
bur>flflba of thii whole icpnacinlMiou of AlalAni* ; and thU auvM lt*rlf will girc I
of ooatw, » much wm^l in tlia IIoiiw aa tlis wbulr d«la^lion of Alabama, wiiUn
tlngla *at*. C*a tt b« utd. tbon, that rcpmantatirH an apporlionod to tfaao
navniiag (0 IMr rajparitw nutnttn r
"Thn ratio muioal by llir bill, it will be pvrceiTed, ]««vm Uigv fatetiou^ ao cbUkI,
or midauj numbmi, in «Ttnd tt the titudl Siatoa, to tht mauifoit loaa of a put oCj
tbtlijuat proparlion of n-|in-j:cntatlT« powoT. Snch ia tha operation of the latio la thisi
rwpwt, tbat Nnw York, wlt]i * («piiUtiou ItM tliMi Uut of N'ow RngUnd l>r iKIrtr or
Ihirtf'fiiY ihuuunil, baa yvt two more memben than all tbo New Eugknd Slalsi ; aad
therv are Hvm States in tbe Utiioa wbiHO menibcn omouDt to the nnmbcc of lO,
being ■ clmr minority of tbo whole Houae, whoacaggregitc liaction* altqgether mwtmt
only lo fifty-tbrse thoii«and { wblle Y«nnoiit and New Jtrwy, haviny tBge<tw tot
tleveii iDMnbeira, Lava * joiut fractioD of (wvrTjty-iiv« tbouauid.
" Peui^lruiis by thu bill will havt^ u it baiipaiin, just aa inaay iBniibera aa Ter>
noDt, Kew Hnmpahiro, Mmnchiuntti, nnd Nc-w Irncy ; but her popnlatloa U tut
•qual to thoir* bf a hundred and thirty thaiiuiiid 1 and tiir. PMaml tt thb adnntige^
derived to her from tha pn>r!«lotii' uf tlu' liill, in, that bvr [rai;tiou,ornaidiiuiu,ittwdT«
lliouaand only, white thein ia a biiiiilrml and forty-four.
" But tha mtject ii capable of being pieMsted in a more exact and nMthtnatieil.'i
form. The Iloiue ia to coniiit of two hnndred and brty membra. Now, tbc pre«fa«4
prupurtion of power, out of the whole maM t«)irmcnl«] b)r the nvmben two handrel'j
•nd forty, which New York would bt tntitltd to aocordjng to her populaljaa, la 3S.M |
that 11 to lay, ihe would b« enlitt«l to tbirty-oight member*, and would have «
unin, or fraction ; and. even if a member wwa given her tm lliat fivolion, aba w««U|
elill Imt'e bnt thlrly-nino ; but the bill give* her ferty.
"Tbc«eareapan,audbuta part, of thoae multa prodneed by the bill bita]
fom, which tbe oonimiltee oaiiAot bring thcmadTta to apfottva. niiilo it I> not to ha .
denied that, under any role of apportionmrait, aomn Atfn* of r*lalin> liin|iiDlity Buatl
always eiiit. the commiUoc cannot belUre ll»t the Statia will eanclion inr^ealily aad]
iiyuMioa to the BXtoiI In which tliey niat in this hiU, if they m» be avoedod.
MColloctinK the oplniona which bad bean exprtaaed la tb* dJewMJoai «f tbe Senate, I
commlitM hav* diligently aongfat to laam whelbef tbcfo wa* not •ome otiiei numher I
wliit^ mdbl be taken fcra lUic^theapfdicatbwof vhlcb««aUwari[«I m>wBjMU(»
and equalily. Id thii ptinuit the tsmmlttat have not bata «uora>eftiI. Tlien air, it ia
inw, other sunbcn, tbc adoption ef whkh wmU rrlieve dnay of llie State* wbicb
euflhr nn4(V the prtaint ; bnt thb lelief wauM be obtaiwd only by Uitfting tbe praann {
on toother 8t>it«a, thne onwting n«w grouadi of romrUint in olbor quattcr*. Tha
number forty-foni Iboniand hat been ^nerally ipaken of ai the moat acm]rtahle anhatl-
Into for (orty<««Ten thotwand aena hsudrod ; tnt, iboaM thit br adoptud, (cnat nbdn
iMquaHty mnld Ihll on Mvenl sua*, ukd, aawng tben, M euuio e( tha aa* and gn>w-
CH. IX.]
nOCSS OP BEPBESGNTITIVES.
£oa
the nec«8aitj of a refusal ; aud it waa iicocdfd to.' The very lan-
l^ugv (uihI by tbc 8|>f4Lkcrs ia former tlmt-s, in order to procure
log StMm. wlioM NbtlT»<Ui|niwmaD, thus 4ln<iil}> gmt, nould U oonMutlj JaetoM-
JBg. The cofiiniitt««, Uwnfnnv an of a|iiDion t)>nt tlie bill ahauld b* •Itantd in Um
nioile of aiipOTtioumcDt. They think that the firocMs nUcli btgiai bf •Hmning •
ntin ihoakl he nl«n<laaed, muI that tbo bill ouglii la b* fmned on the |<tinFipIo of th«
uncnilnionC, whii.h hajt bMii th« malu wlyiKt of iliwiualan bsfoni (hs Smutc. Tho
ftlnivw uf the |>nu(-i|il« ol thin aiurndmcnl, knd Um gCMial oquitr of itji Tuiilla, con-
pand filli iIjuk ivLii'ii How Imia tbc othct prooeMv ■**■■> pl^iB and Diidanlttblo. TU*
nuid ijuriiion hu bcon. «h«th*rlha pRiidpla ilBtlf fcoBowtUvdoD&l ; aiiil tlii* <|iM«lfoa
the cDiniiiitii'i; piocccibl ta flMuiD*, iwpMlfully Mking ot Uh)m «bo hare doubted it*
ix>natitiiii.)iial [irujirialy, to dMni Um <|uoitian of to nuch ua{Nitutce » l« jiuUTjr ■
Mcoiiii [f Use [lull.
" The worda of Ute Coiiititutlon ara. ■ leptwmtatinaaMd dirtet taxu ahaU boapper-
tioiMd among the wT«nl Stata* which may b« IntluiUd within Ihit Unia«, Mcontiiig ta
thatr Newell i« iiumbrn, which thall t» detarminnl by addiag to tba wbulc ouinbtr of
tuB pcrwni, indading thaw bound to (ervico tot a tern <rf yran, aad exiludiag la*
diau^ tImo-Sfth* ol all «(hcf iwraoiu. Tho aeliial anamcnilion iihall be mado within
UtiM ytara aftnr Um flrM aiwtlng of the Congrou of tlk« LfniUil SutM^ and within
V*rj ■ntacqntiit term of tM jtu*, in iiicli inannnr at tWy liiall by law dinot. Tha
nuDibcrof rtpnisntMiTiMaliaDiiotnMwilaiw foi «v«vy thirty tbaiuaitd, but aaah Blato
iihall havfi at luuC onn nftwantatifa.'
"Tlir[VH»iilJ«tun toh* Uttia difficulty in andantanding thoa piOTiaion*. Tha
tmni Ufod ura dMignvd, doabtlMi, to b* itoalvKl is do jirauliar or tMlinital aenw, but
arrordinji In thrir <iamiiian iiiid populir •oeajttatioii. To apperliait it to diatribata l^
tit-bt [iidHiir'', t" m:i vtt in jai.1 iiiir4% to aMlgn in due and propra propotttoD. Th*M
clausm <i[ til' (.'oiMtitntiuii noi]ii'i't not only iha portiona of pvwor, bat tha portion* of
the pablic biinlfu. uLui, wliii.')i should AJl lo Itw aevcial Stalta ; and Ibe wune laDgnaga
b applltil to botli. Bcprearnlalini* ara to be apportionod among the Stata aocranliBg
to thaif raqwctir* numbtrik and direct tana are to bo apportionod by tha aamo rala.
The end aimed at i*, that rapmoitatian and taxation ihould go haad la hand ; that
each Stale ihould be repnaewttil In die *aaie citewt t« which It l« mad* antciMt to the
pnblic chaigea bjT dirwt taxation. But bttwfien tha appoiilaumnit of repraMstatiTW
■ad tho apportiowment of laxe* tlulw mptlMiily «ri)ta ana eaaential diSMBiMab B(|>>
nwmtailan, lownded on niunb(t\ imut hare aome limit ; and, Mag Emn iti natoK a
thing not capabU of Indcttnlt* eubdivMan, it OMUOt bo made prede*)y «<|waL A tai^
indenl, caJinot alwaya ur often bo apportioned with pariact eiactneai ; aa.laeUiiwiaat-
toi of account, tlifre will U fhtetlnnal parta of the amolUa <oin* and the smallert ^
■Mminationof mnney of aoaouat. yd, tf th*aMu]fubdi*W«iauf the ooin and «f the
danomination of ntonej, the appottioamtnt of taxw U oapable of baiiig made ao auet
that the inequality baoMnaa minvte and iannhlb But rapfaMBtalloM eanaot he Ihna
divbltd. or mnieentation, than can be nothing 1n> than one rtpeaentatlTe ; ne4>, lif
our CoiMiinUow, matr ivpnwtntatlni thwa o«ie fcr erery thirty tbene*»d. It b quite
obfion^ thetrfort. that the appartknumt of tepraMwtative power oan nern- be piedw
and ptrficL Thtre mnit alwayi exut some dq^ree of inequality. Th«e who fmmcd
anil thme who adoptrd iha Conatitotion nn <4 Doorw. folly acquaintol with thia no.
OMMry OpeiMion of the prtniilon. In the Sonativ the Stalaa an catithd to a Axed
anubor of nwalew ; and, Uitntoe. (s regard to thctr NfMaaolatlow la that body
> Com. Dig. AtWtaMNl, E. S ; 1 IwUt 8, Lex Pari. eh. 13. p. H.
504
coNsnnTTtoit of the irnvno states. [book m.
the apprOTBl of the crown, waa anch aa would not now be toler-
ated; and indicated at leaat a disposition to undue aubsenriency.*
thm ia DO DaDHiqu«ntk] m incidMitd intiquaUtj' ttiting. BM, being r»pwtnl»d la
tka Kaiue or BvpRBcnbtiTca according to Ihm nsptcttrp nilmlm* of pwpla. it ia
mMmtiJibtD that, in MrignSiigtoMch Suite iUnnmbcr of neoiben; the exact propor-
Hon of eaxh, out of • given nnrabcr, CMiDot tlwij* or ohen bt ciptoiwd in whole
nimbai* ; ilwt i« to mr, ii will not of(«n tm fonnd tlHt tb«T* Mong* tn • aoits sxactljr
oiM truth orona tatnlirth or oiiu tliirUMli ot the wlinla HoitMi ; tail, llMnfcn^ BO
number of npi«IMitati«'N will uivrtly larmjiaDd wUb Ihv rigbt of such Stat*, or Ilia
pnciM diara of rvpreaentntion whir^h bcloiigi to it, acmrding to its popnlalion.
"ThoOMMtittitiDD, thcnforc, mad bn unJontood, not a« enjdoing an ilaalatB rd*
■tiv* Mioftllty, — bcRaoae thni vroiiM l»<Irrnuin<llngaiifBipoMlbi1iCr, — but aa nqntrinf
or Cvnynt** to ni>lc« t1i« jtpj^nrUun 111*11 1 «f ropttatntallva* uiioiig tho a>rMn1 $tMM
acconllng to thrir mpvctive nunibpn, lu n«iir at mm)/ b> Tbat wliidi taiinot b* dotM
perfectljr mnit b« done in a manner u nnr perli>(4ion at out be. ir nactont can-
ant, from the nacnrc of thlcgi, bt attaincil. then the gnalcM pnftieable appraacit to
•xaclniai oii{[hl to bn initdn.
"Oongnaa la not ataoIrM rrom ill nle, marrijr bstnua* Uio nil* of ptrfKt jaadM
eanaot ba applied. In nich a eu% apprssinution bKoniea a niU 1 it takta tba plane
•f that other nle, vbich would be pmfmblc, bat whkh is found intpplicabiti aad
Immcom^ liaelf, an obligation of Undlnn t<iKa. Tha noartat apptoxlmatiea to tcaet
truth or exact right, wb«n Ihnl txKi tnilh ut tliat «xact right eannot iudf b« PMcfca^
prerailH tn oilier eas«^ not as matter of dimetion. but u an iDtrlU^ihle and <Muit«
rule, dictated bjr juatioe, and conforming to the comman-tenie of mankind ; a rule of
no Imi bindinjt forne in eaan lowlilch It l« applJMblrv and no laon to badapartad
hvBi, than anj oth*r rale or obligation.
*'Tb«eaDimlttM underrtaud tbeCouititution ai tliey would hare nadantood it. If
it had Mid, in » miny worda, that reprMenlatin!i ibould bo apportioned auMog ibe
StatM, *«carding to thfir napect)*! noaiben, u war a* may hv iriUtb*MitIairM
■neanlnji, Ihnn tt bai tithnr jj^Ton, on tbia matt dellcal« and important ratijecf, a ml*
which ia alwKjrs inifmetlralite, or 'Iw It faaa giren no rale at all ; becnnae, if the rule
ba that pcpiwtntatiTW ahaU be apportioned eattllg aoemiliiig to nomberii It ii Imprae*
tlaaUa In trmj caae ; and if. for tbi* leaMn, thai cannot be ikt ral^ then l]iai« i« no
rate whatwfar, nnlaaa ihtmlcba that Hu^iball WapportbntdiuiwarMmatih^
"Thia oanatniution, tndeod, whirh th« mmnnttee aiJopt, baa not. lo tbrir knowl-
edge beta denied; and thejtvoond in the dimiBion of tiiaqncalMni befon U>e Ban-
ate^ taking br gtanted that *neh ii the true and nndonlabla nuanlog <f tha Conitltn-
tlMI.
"Thanait tblngto be obeevml it, that tb« Conttitntlna pnaeribea no pattfcolar
procnn by which tliU *ppar1ienm4nl it lo be wrongbt out. It hu plainly draciibsd the
end to be accooiflialieil, namely, the neanat approach to rdatirc ecjoility of rtpim n-
tation among tbe Statei ; and whntercr aocnnpUiiin Ihia cud, and nathtng alw. It the
tme praccw. la tratit, if «itboDt any proteu (rbslcTer, wbrthn nlabnml« orMwy,
Oaijpnw oenld permvo tbn exant proportion of mpnwotatlre powpr tiglithitly bebng-
Inti 10 aaoh State, It would parftctly folfll Ita dntj by coafoning that portra on Mcb,
wftlioat lettrenoa to any ywowa whatevrr. [t woald be enon^ that the prapar and
had been attained. And It 1* lo be ranarkcd farther, that, whether thli end \* attained
> Sae ChrtHlafi't Xote to 1 Black. Comm. 181 ; Comn. INg. PtrUtmnt, K. B ; 1
Wn*M'« Uw L«;t. 1G9, 1«0 1 4 Co. Inat. 8.
CH. IX.]
nOUBE op BEPBESESTAIITra.
60ft
A Bimiiar power of approral existed in the rojaX goTernoro in
many of the colonies before the BvvolutioD. The exclusive right
httt by oDf pTocfw cr by uother, bMoiBM, when «aeh fjacm hu bera curitd
tbnugh, not mailer of opinica, bat natUr ot BatlwnMtMil ctitiiBtj. If tlw wbala
tni'UlMion of ihu Unlud 9Mmt tiw p^nhtioB •f «adi ftata^ ••d Iha fnfouat luunbcf
n{ tlw HooM of RaprMMUtlVM ba all pi-cD, tbcD, tntmai two Ultt ippattionuig
the mvTiibm UDong tlw ttnrti SuM, It taa b« told, witb sbMluU cirtiJaty, wbioh
bill uugni to uijr uul «TFi7 Slate tlie nuiubc* DtarM t» the «tacl ptojwttloB ol lh*t
Stale ; in otbn woidi^ wUcli of the two biUi, if nitlur, apporlmia tbe i«|Jt«MntatiTM
Moording to tb* nanibtn in tb* Stntca, mptctivdjr, at xaor m aMir Iv. ir. tborefon^
a pMtleuUr ptrnvn ot apponitmaiaDt b« adopted, and objcctiMi b* nada b> tba iajw-
ties «T iuoquality of Ita Rnill, il is, Kunljr, ii« aaavar ta ndi afejaetba to iWT that tba
)i)«qiMlit]r ncoMMiilj nralla fran tba satonoftlia praew. Btfci* autb aiwww could
avail, it would ba MOMwy t* ihow, *tQut that tba GonalitBtimi pcaeribaa MacL pn-
oaat,an4 makaaU Dmnmit', «r tbat thanianootbar modaaf prootadUig wUeb woold
prodnca IsM faxiuaUly and Um Ujadiua. If beqiudlty wblch mtgftt bar* oibatwl**
bean aToided bs produoad b^ a givan pfooeaa, tben tbal proon in a wrong om. It m
oat antlad to tbe caM, and dumld be i^>Ml«d.
" Xor do tba commitlao paroure how It can be tnalttr of oaoMitiUknial impritty or
nUdity, ta Is any w«j ■ conatliuiunal qntatinni wlethN' tba pToeaaa wbieh nay ba
apjdinl to the caae be aloqila or tompoand, ana prucae* er many procaaaa: wiata, ba
the Old, tl may always be aaen whether the molt be that which haa ben aimed at,
namelj, the ncaitwt practicable approadi to prccia* jiutjot and relative njaalitjr. Tbe
CtmnitW*^ Indeed, are of ofdnion, ia tbia oaae, that Um ainiflcit and dumA obrioM wajr
of pimeading ia aba the tne and oonelitnlioad way. To Ihom il appMnv that, in
eanybig into eOlMrt thi* part of tba Conalitution, tbe fitit ibing natnrally to be dcae it,
to deetde OB tlio whok nnmber of whidi the Hoiueu lobeeowpoaed ; •« wban, nnder
the larae elanM of tin Conxtilntlon, > tax ia to be apportioned amoiiR the Stotaa, the
oauniat of the whole tax ia, iu tlie flnt {into, bi W wtUtoi.
*' Wbcu the whole number of the [vqwaed Huum in tbiu aictrUined and fxed, it
beoemaa Uio entire rcpnaeotaiivo power of all Xhr people in the Union. It ia then a
vaty linple osltar to eacertaln hnw ninch of thi* reprcMblatiTa powtr each Stale it
cntillnl to I7 it* naiab«r*. If, for ainmple, the Uobm ii la contain two hundred aad
forty Mtoabem, then the number two hundred and forty axpraeaaa iha rapraMntatlT*
power of all tbe Stain: and a plain valcuUtion nadily ahowt how Binch of tbdl
power belong to each State. Thin portico, it h true, will not alinxj^ am «Hra, be
WpnMed in whet* aamban, bat it may alny* be pnwiatly exhibited by a dcdMal
fkrm of expfwaahMi. If lb* portion of any Slate be vldoin, or ncTer, one exact teatl^
one exaot fiftomtb, or on* axact twrntktb, 11 will *UU alway* be npabl* of pteijii
decimal expCMMO, *a Mie tealh and two hundndlh^ OM twelllh and (our bwadndthih
one tneenlb and dx buadiadtlu^ and ao ou 1 awl tbe exact perlian of Ike Btau, being
thnadeefanally >x|iiiiit, will alwaya ihow, to malhf *tioal eartaintj, what luu^ial
number ronca neanat to *U«h oxa« partlon. For exnnple, la a Honae '— ^i^ng ot
two baitdied aw) forty moaban, Ih* oiart mathematlMl ptopertion t» whibb ber
BumUtB eeititle the State of Kcw York ii SS.S9 ; U ia 0<riala. Uwnfan. that thirty
■dtM la >h* lnli«ral or whole nnmlier neurit to her exact proportion of the irprveeiitB-
lire power of thr Uaiea, Why. tbta, ihotild the not hare thiitj-niael and why
dioaU ebe hare forty t Bhs i« not ^uit* entitled to thlrtynlac ; that nambn 1* anme-
thlng more than her right. B«t allowing Imi tUjty-nlD% bom the neeaeiMy «f girlog
b09 OOKSTlTlTTtON OP THE UKITED STATES. [dOOK Ul.
of cliooaiiig a speaker, without any appeal to, or approval bv, any
other department of the goverumvut, U an impruvemcat upoo tho
their-.
hor whola nuiiiben, uJ beeuM that U Uio nnivat whoU nanilMr, it not tke CoaitiUk-
tion fnlly vbejrwl. wlwa iba hM iMeJTod tbe Uilrljr-DiiiUi Munbcr I I> not brr praf«r
nuinbtr of (epTHPnlaUves ibw (ppgrtMiiod to her, u imn u inajr ba I And ii not th>
Conititiitinri dtin^inltiil wheu the blU !«■ (urihxr, and giTo* b«r ■ focurth tmtmbv I
F«rw>utU lucli ■ (ortieth muoWr giiren I Not Rm hnrtbablnt* ■iiinliu*; far bar
■bMlnte nmnben do uot antjtla hir to thirty- iiin«. Not tor Xhe Mks of kpportiaBfaig
her iMBibcn to ]uit umnimn, u near m iiii]r be ; b(«uu« thinjT'iiiao w a a»va afilMr-
tknmmt of mnnbtn to nuinben tluui forty. Bat it i» pvoa, vy Iha adracstta of Iha
HU, bwMM tha procttt vhich liu b«n luloplod give* il. Tli* UMwr bi, no tMh
: it (tywnad by lh» Contlllatlon.
' The etmt of New York may lie eompa[»d ta MOtmMcd with that at Mlaonri.
The exact proportMn of iLmoori, in a general repnaautatkui of tno hu»dnJ aiuj turty.
It two aiul fix lentht ; that ia to uy, it eomca ntacnr to tiirM usmbm ihaa to twoy.
y«t il it ooiiGned to two. Bot why U not Uiaaoari entitled to that Buwibur of iT]<r^^
■Mtatina whiah otnM* ntanat to her exact ptoportlon r It IIh Cui»tiiuiMD fotfitlad
at to hor, whfla that mmber it withheld, and while at the nine liiuo in another ftath
not only it llial nearait nnmbar RlTen, bat an additionti mMobtr |tlv*n alio ' it It an
aumr with wliirh the peopW of MiMOuri ought to be latJtGM, wImii it b said Ihtl
diu obrious injiutiee it the neoBMry mult of the proma adotrted by Ihe bill 1 May
thny not uy with tiropriety thai, atnoe three ia the ncareat whole Dnnbcr to
OiacE rlxht, to that nnnibor they an entitled, and tho prortat whlek dtprina Iha '
It inaal be • wrong priKMt t A timilar compariaen tnigiA bt toada betwMn N«w T«
and VennoRt. The «not propoiliea to which Tennonl ia ontllled, in a nfiii
of two hnnilrK) and forty, ia t.tW. Har neartat wbolo uwnliRV Iheiefoif, w«bI4 '
fix. Now, two tliiiijf am nndanlaUy tree : fint, that to take away the brtieth i
b«r ftwn New York would hring hfr ni<raFiitatioii nearer to her exact ptoportMn I
it tiaada by Ipuvujg Lcr that fortirth member. Sorondly, th*l filing tha Mce
thot taken &oin New York Xa Vormont would bring her np<M(«taUu*> ntarar lo '.
•not ri^t than U ir by the bill. And both tbvta f««p«tioni are equally tnie ef i
tnntfcr of the twenty -vitibtli iiii>inb(r aMtgned by Ibe Irill to Ptmeylrania, to
wtic, and of the thirtceiitii n»iiibn amigned to Kentucky, to Ulaaonri ; (n olhar^
worda, Tcrmont hai^ by her namben, nntv right to iji mnmben than Niw York hat
t» (bt^. IMawam, by her numbtra, hint morn right to two membtn than Pemiayt
rania bta to twenty-eight; and Mtttouri, by her nvmbteti. boa mote right to thrt*l
■nembera than Ktotmky hat l« thtTt««i. WiAout dittnrhing tbt pw|aatd nuinl«r tt '
the KooiF. the mare changing of theat Hirtt merabMH, (torn tad to ibe aix Slalea n-
•Iiectivoly, would brlnj{ the rrpreaenlatiaa oC tiM whole aix ororei lo their doe ptopor* ,
tion aixordiiix to tbrir resptcliT* onaahei* thaa die bQl, in ila jirmant form. Riakaa IL,
In the fan «t tliii iDdiapulablo tmth, how ran It be tald that llw lilll ajiportlont i
ben ef Oongtw among Ihoae 8tat«, awarding to their mpMtier number, luiueraa^
may it I
"Tlie prlndple on whldi th« propeatd anMndmmt la fonaded it an cAMval eoeiM- 1
tin fbr thaaa and all o<h«i aqunlly gr>at lnt>iiwliti«i. It mty be applied *1 all t{«ai
and in alt cmm, anil It* reaolla will alwayi be the nearart approach to pcrffrl Juadoe.
It ia eqmlly nnple aod impartial. An a mie ofapportioamcDt. it la lltila otlier tlian a
tranacript of the wonla of Ihe Coattitntion, and tta i«tn1ta arw nttlieBUirally cettala.
TIm CoMlltntioa, at the comBittee nndenlaad it, atyt, tvpnatntatiew ahall he appec
CH. IX.]
UOUBK OF nEPRGaEHTATlVES.
SOT
Britifih Bfstem. It secures n mora indopoadcnt and unlimited
choice (HI the part of the House, uccordiDf^ tu tJio moritii of the
^
tlontd ungBg th* SUtm^ MoartUng Ut tliiir nafmilire nnnibtn of people u nmr m
«■>; h». Th* rule mdoptnl b; tlw cwnmittn) nyi, out «f the whoh miBba of Uw
nmue, that noiutKr dull h« iiipartiontd to aeh Stat* whk^ tmtm luuvt t« Ua aucl
righi. «««t<dJn8 to ita nnmbtrof poojiU.
" WtiHR U (h« rtfwgiuaojr bMvMH tlisCanMitnlionaiul Iberulel Tluugiuaeata
tgtiiM ihv nle nem to nMune that Xhtm ia ■ ne«B*iit]r of inititnting Mmo [ifotwi^
adopting aoino nomber a* tbc nttio^ or m tbai nombw of paople whidi nch manbw
■biJl U DXidontood to Nptawiit ; but lh*oanniitta«M«iiooccaalaBfatsiij oUmt pro-
MM Khatvnr tha« if mplr lb* tonrtalnintnt «f that fWMfHn, out of iba mMe warn of
tlie npnamtatiTa poBsr, vhidi BKh Stat* 11U7 olaiai.
"But it ii Mill, ibat although » State mnrrrwire a ■innbw of tTfiWBiitatlv which
la (ometliinx iett than Ita axact jiroportiein of rcprewntatlan, yd tku (t can In no cat*
MMtitMtloualljr rvoivs mot*. How b tiiii |<n>paiillan jkutpI r How ia it ahuwii that
the CoaitltatioB it tm pMfntljr fullUlad Iiy allowing a 8lat« a amall txMm, tlua hj
aufajfcting btf to a krgc dcficivncy I What the OonitttatMOi it^airM^ fa the imnat
pracliMhIa appTMcli to pmiw juMioc. TIm rale ii appnixtidatlon ; and wo ouchl l»
am<mch, tharafor*. on whichnvr u-ie we can approach naaicu.
" Bat there ia atill a nan couvlu»tT« aunwvr to b« given lo thi> >iigBntioa. The
whole nnnber of npceetntaliTn of which Uw Uoiuc ia to be «ampoMd i>, of nxwdty,
limtUd. TbU number, whatevi* it i*. u that which ia to be appoitioncd, and notUag
cIm can he apporlianod. Tlib ia the whole auin to bt ilittHbalnL IC tbenfot^ !■
making Uie apportiodnieol, emui> StaMa tetcira 1(M than their jut (hare, it mwt neee^
lariljr folio* that eome other Statca have rrednd moi« than thclt Jnrt ihara. If there
be one State la the Union with lea* than it* right, aome other Statu hu niom ilun lie
t^ht, «a that the aigunnt, what*t«r b* ila far«e, eiifliM to the hill in ita pment
form ai elwoigl; m it oan errr apply to any bill.
** Rut the clileetiisn matt nnullj ui;p9d i4{aiti*t tile principle ef the pn|*aaad anmd-
meni !>, that it pnmdea for the »(iwaenlaliiei of fnctiena. Let tbi* olyeetion be ex-
tmiiieJ and MntUend. Lei U be aneettetned, la the Bnt pitat, what ibcea lnc«loni,
or fiactional numberii or neidoery aumben really ar*^ whkh, it l« laid, will be repre-
■ented ihoutd the ammdment pnrail.
" Jt frartion b the brakm fmn of iMBe iatef^ number. It u, tberefonv a nJatira
or deeivetlve Id**. It ImpUe* the pecTwna ciiatenee of eome fixed nnnber of which it
b bst a part or rcBaindc*. If there be bo oModly for ftiing or eetabllehlng aneh |>*-
TiMM nttmbrr, tlten the ftaetioD teauliing frou) it i* ttadf not natlar nt n*o**iity, but
natter of ehdoe «r aoddait. Now, the argameDt wtiieh toaeidm the flan ftvfoatd
Id thf amtodineMt H a nfnauttttMm ol fnrtiem^ and theRdoro nMaulibatiettal,
amimea aa ita heaii ibtt, aeeocding to th* Oenttitntion, ertry menbtr of the Hob** of
Bepreetatatirea TCfircanit^ «r eoght lo repreaeat, the aaMe. or Marly the (um BUMb«r
of eonotiluenta ; that tUaMBbcria lo beregaidadaaan integtr; and aaything hea
than Ihi* U, lhef«fon>,caUnlabaction«rariHidn«m, endoBiiaot beeaititin) toarepre*
tentelire. But Milling of Ihla I* preaerlbtd fay the CanaUlntion of the Dnikd Statea.
That Ccoutitntkei ceateMplatee od Lntqpr er aay oeoNBMa nvmber for tke osMtiliiNita
of a mombtrof the Hoow of Rfpnemtatjeia, It gNi not at all into thaee anbdiiiektt*
«f tbepofraUtlonoraState. It p«»ridealbrth*apf<«etioMD«Bt«f ruirewntattrnamoag
M# mrrrat Slalet, acrardi^ to their r*if*e(i*o nnnber^ aad ilopa there. It Miakee no
preriuoti Tor th* reprraenttllen of illetrtcte, of State*) or to the repieeinlatton of any
SOS
COKSTITCTIOK OP T1IK DNTTEU 8TATBS. [BCKJK m.
IndiTidiial, and tlicir own Hons« of dutj. It avoids those incon-
vcniciices and oollmioiia wbicti might arwe from the intcrpoeitioa
pottlon of 111* p*opl»ofa8ttU^kM tbra tho «)mI«. It wji notfalpy of ntk« or of
coustitumt nambfn. All thaw thinff it Imvb* to Stale ItgUUlka. TiM right wklck
Mteh State po«iw«i ta Ha «>k d«e padMO o( thr rtprrwutMi** [mwr h • 9lalo ligbW
iCHclIy ; It iMilonjci la the State, •• a Slato, and ii in to be Djed and exeitiMd aa tka\
Sum majr «« fit, auttloM ooij m tb* coailUnlloaal qiHtlJkatiaea of elecUn. Ib theX,
tlw Statca do make, and alwajr* haf* iiuul*v 4Ur«i«Bt jmrMon* for Ilia nsnim of ilri*
power. In Miino. a nii^ inMiib«r ia choata for a oaittln daBaMi diatriirt : in ulbrm,
two or thre* nifmbon ai* ebMrn for the Mine dklrict ; and bi mme, ngioi, u Htw
H<iiiir«hl»^ Rhod* lalutd, CbmtMstiovt, New Jtnejr, ud GMOgia, the eniitc w|Wf» '
Utiuii uf Uin 8tat» b a joist, undivUfd rqinMnlatkm. Ib tbaio liat-nentienad StktBi, '
ever; membc* of the Hoiun of Re|««iMDUIi*M bu for hi* «an«tltu«nl« all Itw poofila «€ ]
tiie State ; and all the pcojiloof thoM Blatw an coaut^ninitljr lepnatDled En that bn»cb
of Conirnni. If tha bill b*<Drt ih* SnuO* dioald {bib into a In. i» its [unuil fonn,
«hiit«T«r iiijunllne K might do to any of thoaa Suui, it would no* ba correct ta aaf
of Ihein, DfrreitfaslcBi, lliat any portion of tlidr pwpit wm nnnprrauiled. TIm mil-
founded otigrvtioB would be, o« lo aernia of them at hnM, Ikat th*; vor* MOt adeqnalelv,
oompetontlf, Gttrly r«|0«enitod ; that thejr h*d not *a naaj Toina and as nuny roUa
In lb* Htnuaof B«iina«BtallTMMlb«ywar»anlltlod to. ThiivKmld he tba oldeetkm.
Th«c««roiiMbeBOtUinp(eaMtalftMtknai tiat tho Staf, aa a Suu, a* a vhok, "<mU
be deprirtd of aome [«rt of iU just rigliU.
" On thi? other himi. if the bill shoald paM, aa it ii nonr pmfioaed to bo aaNwIad,
than would b« n» raproarautinn or frnetioiM in an;r i^fto i for a mctioM mppttim a
dirition and • ranuinder. AH thxt could Juatly be nid would be llial bomm of Am*
SUKe; M Stalra, fammui a portSon of h^idatiire power, a Utde hugtrtlm thtittaMt
rigfat ; lalt mart be admitted thai, iboHld the Ullpaa* ntiamendad, they would |NMHa
of that power mncli !«•« th»a that cnot tight. Tha Mue remark* are anlwtuntblly
tnt. If apfllod to thoM Statea which adopt the dlMiM ajntem, aa mort of them do. In
MiMouri, for emnple, then will be no heclion unrepre— tiJ, should the UU beconw »
law in ita preeent tam; noran;r iMenberfbrafrBCtloa, ahosld thoanendtoant prendl;
bpeauw the node of apporttonment, which aasiftni to «a«h State tkU nnnbee wliieli It
neareat to it* eutet right appllv no aHanied rstioi^ maluv no aabdletdeni^ and, «#
eoarMipKMiuceenofnctJans. In tlteone caMOrlu tbaother.dioStaK Mediate, wilt
hara Mmething mora or aome(hin)[ leas than Ita exact peo|iettlon «f lepeeaenUlii*
powtr ; but »he will part ««t thi* power amonit htt own pM|>k, fn either ia*e, in muh
mod* a* ehe may ohooae, or aterttM it alto^thar aa an entire repreaeutatioa of the
people uf the Stale.
" WMher the lubdlTMioa of tha r*pn«nitatm power iritUB any StaU^ If tlin«b«
s lubdiTlsiou, be w|na] or luiBqaal, or lUrly «r mUriy nrndi^ Oensraai canaol know,
and baa no aatboritr to l»qnJPB. It (• •aoo^ that tlw SlBlo prawnle her own TVfae>
eMtntJonon thaSoor of Canjpeea In the Mode rite dboMM to pmenl it. If a State
wot* In gir* one poetion of bcr tarritorjr* repteeeatatJTe for ewetj twenty-lire tlxinHud
penHin*,*»d to thereat a wftesenf tie* only tor erary Utf thoueead, it wenM he an act
of naJMt lecUlatlan, doabtlMs, tail it wmhl be whoUj btronl redreae bftmj powe* In
Caagra* : beoanw tb« OsfnHtntlDa bsa left all thi* to (be Atete ttaelf.
••nHae<«iuMeMian9v It » ihoaghl. may show that ihc C«n«lilutlan !>■* not. by any
iia|4lt«tlon or nscemary eonatraotian. etijolnad that which It eertaialy h»a not ordalnad
iaUraa, tit., Ihaieveiy DMonberofdio HovMihaU boaBppMedloKfnaealtiwMMi
CB. IZ.J
HOi;SB or [lEPR^£KTJlTtrBS.
509
of a D«gative in tiroes of high party excitonient It exttagnishe*
» coiuUut suurcv oi jcalous>- aiid bearU>uruiDt; ; aud a dispoaitioD
kuBWr«f MD*tlto«nta: ud llMnlbta, Hnt the MnuDptlim af ■ mUo, w repirMatiiig
th«C«nwB» WMnbtr ofeoDrtitf t^ ii at olUd foe by tjia Cou«titalJQH. AllUutCte-
gTMt U M Ubrtt)! W do, «■ It TOBid MM>, t* to dtrl>U tho llbole N[ltC«IDUIlT* piM>«r of
the Udmoi into tir*otr-four fut*. twining on* put to cub Stftta, u nwf m pnotiiftUe
MDonliiig to lu right, aad tM*iiig aU mbMfUMt utnagmuait «id tU wbiUrUaw t«
ihiSuioitMlL
" If Um view tliiu taksn of A« righu of tbo 9U(«* uri (b* d«tui of CongftB ba tlw
OCOMl vicB, then Ik* plan |>nipM»it [a ibauMNidaiNitiiinMJuttKnMBnpnMn-
tatiM of fncttonft. But ni|ifieM H wu otberwue ; (oppoM ■ dlncl diruioa wwtB
mad* fnr iJlovrl^ * rapwHUativn to or«y 8tat«, In whoM pa|iul*lioiH it being fint
difUad b; B «Muno« ntio, tlun •bonld b« Anind aftaotiaii auatdi^hBirtbtaiBOMM
of ttiat ntta^ Kliat coMtitaUoiMi objection moM be birij- usmI a|^BI anch a pn-
Tuion r Lat it ba alwayt ramambsnol that ttw eaac ban ijnnaid pn>*id« ealy for a
fracUon «xMtdi«g ik> tuaittj of the tatia ; for tha esniitlttaa adMlt at oaca tbat tba
■■|*MUitatiiiM tt fnctiMU. Um Ibui » (Boiaty, U nucooatitvtioDal ; bccaoin, ihouU a
Bcnbar be aUomd to • Sul* hraotik a frautiun, it would be owtain that hit repnauk-
latloM would not b* ao mbt bcr euct riglit u it «u before. Bnl tbo allavBBca of a
Utmbot ht a nwiar baclion ii b direct approximation towanla JwliM and aqnality.
Thore Bpi^an to Um OMnmllUa t« W n»t)iLiig, aithar In tba latUr «r tlu aplril of tba
OautfOitlon, ofipowd to anch a ntaik «( ^ipaniuunanl. On Uie oontnuj, it Bmnia
•ntfnljr omtfattiit with tht thjt wluMt wbidi Ibe Oooalitvtua oMtanplatod, and wdl
oalonlMad 1« aeeoaptirii it. The a^MCBt mmnonlr ujfcd agunM It ii^ that it ia
■lowaiy (0 Bpply mmt on* oaanmoa dlvlwr, and l« aUda bjr it* naultfc
"Itbf tUiitbe ■cant Unrt tiun mvi be aoae oemBon rale. or wnw m«aaiiH^
apfdieabk, and applied iBpartlBll]rl»aUtlM8tatca. it uqoilattuB. Bat,iribat >Uch
Ii btandHl ba, that tba pppnlatioM of aack 8ibIb muat be dindod by a fliad i»U», aad
«U NaalUngi rnoitMw, gMt or «n«II, dkntpfdad, thia i* bat to take tea gtulod tba
T«t7 thing IB rontraran;. Tha q««ali(ai i«^ whathar It 1m auMnatltutlunal to inaka
BpfooxiBiatiDa to oqnoUtjr b; allowing rtprcMBtatina for Bajor fiaotiona. Tba attnt-
atira «l tUa qMatkai la indaed dcttiod ; but it i* n«t diiprattd bjr Mfiag that wa nnu<
abadc hj tba opaiation of diaWa*, by an Muninod ratio, and dim^gud bw titttL Tb
_i|nwtIoa alill rrmaina at it waa bafon ; aail It U Kill to be ahown what tbne ia la tba
OoMtUMloa wbioh r^eda a|ipn«fiBBliai at tha nil# of *|>porti«nnMnt. Bat toppoaa
H be Biiimuj to find a dnrfaw, and to ahida it* rwrolta. What iaBdiTiawl KM
MMMHffljTB alupb amnbet. It majr be canpoaed of a whole nsmbcr and a fraetwai :
U BWy llaatf b* th* rault of a previoua itooub ; it nuy b* anything; ia idioit, which
(tediwn acouMta and iinitiMM diriika ; wbatarar doa thla ii a ooMon ni», a eon-
BN* lUMdanl, ««, if liw waid b« Laportant, a oonunoa dirlaor. Tba oomaniUae nlrr,
on tUa fart of the OMtt to nu« obwnratiooi by Prafiwar Dmb, with a lahU, bath of
vhfab aaaaanpaay thk icfMrt.
** Aa it U not ii^irahabl* that opioioa ha* bora a gaod dad inHnamad «n Ala
mibitel by what laok pboe on lb* paMii^ oT tha flial act aaUng aa apportkatmral of
raptaamtatina asmg Iba Staka, tlM MaiorfHaa ham asBminad and conaidarrd that
pnoadNiL If it bo in pmat to the |maent oaaa. it iavntainty natitW lo Tery gnat
wtlgbt c hot tf it be of gaaidonabte appliealioK, the text of the ConMitntian, aren it
It tma daabtfiil, oovld aot b« aiplaiMil by a donbtful ooaaQcntaiy. In tha opinion
«( tba eoouftUiM. It ia only MOMaaty that what waa mU en that occaalau ahould b*
610
CONSTTTCTIOK OF THE tJKITRD STiTBS. [BOOK til.
Dii on« side to cxorl no undoo influenoe, and on the other to m-
ini« a hostile opjxMitiun. It relieves the executive department
iindtintomi in rooowliou wiUi tli* ni^JMt-iiiaUcr Uhtn under o«uid«rmtia«i | wkI io
onlcr to H« what that ralgMt-inattcr trMj <n^ tbs c<niuiiitt<« tkuik it ittemmay to
Mate ibotlly, the out.
"The two hoiuti of CongraM |iHMd • Ull, •ftw tlw fini Hittimntloa el tbn
twiplf, pTOTMIiifC Tor • Hoctw of BejitMantaUns which iImmU eondM of «iiir hundivd
kiid Iwvuiy mfialxn. Tlie bill npretaed no rala c« iniMii>tc b]r which tbrae memton
wvn* ungned to tb« MTcral Stntn. It mtnljr nid, that Xnr Hanptbirt ilioald han
firo iiwinbcn^ Uauochiuotl* ten. *tid to on ; gaing tltrough M the Statot, mod •sign-
ing tho wbole nnnilwr of niia hnn Jrrd uxl twniit;^- l^^Wi h; tb* mutni, iJian ncwtlf
idii-n, It kp|)eu«d tliat tli« wliole n^imtulaliTe popolatiMi i>t ths [Tnitiil i)Ul«< ««
S,ai5,V!tO : aril it wiu evidfntly tlie wUh of Congnw to male* th> Honta M munoniii*
u the OvoititRtioD would lUoir. But th« OraMitnlion bM nid that tbm tboald lut
he ntoie than one tnember Tor crcrr thitt; thoniaiul futmm. m* prahiUtkni mv,
of ooune^ to be ol»j«d ; bat di>l Iha Condlwtioo meaii that do flUtaa ahaaU bar!
Rtore than oae iiMiiihct Tor ainrir thirty thouaaad perae** I er did it oiil? Meaa tlui
the whole Honw, a* eonpand with the wliole populatun of the (Waited Slatet^ ihattU
Bot contain ntore than one numiba for every thirty thoiuiiiil pcMMu I If thia lot
w«re tho me conatrncttoD, then the HU, in that particulu, waa rinhl ; IT the fine
w«Te the tne coaatnielioa then it wat wrong ; boeaoa* •« aaany »f«ib*n could not
be aotgnad to the Statea without priog to aoma of Uien more nenben tfaatn
for every tUrtj thoMand. !■ fact, tbe bill did pntpjee to do tkit in ngafd to aat
Slatta.
"IVaidnit Waahin^n ado^Ked th«l coMtraetiaM of tke Ogoatitstiaai which ap
plitd ita prohihttion to eaeh 3tst« tndiridaally. Ha (bonght that no StaU cou
conatiutliaaBlly, icetdn nan thut odo member for every thirty thonawd of btr '
|iopiiUUoii. Oh thin, lharGf>>r«, hia main objactlon to the bill wa* foiiaded. Tlial
olgection he utiiti^ii in thew worda : —
"'Tbo Cgtutitution hu nUo |i«>rid«l that the nninber of lepfeamtitim ■ball i
ozccfd one for crei; ihirty thaoBiod ; which leitiktioii i^ by tho eantcxt, uid bf3
bit aad obrioiia conatrnction, to be applied to the wpante and teapectlTo Biiiiihx* af
the Htatna ; and the bill haa allollnl to eight of the 8ul«a RMeo thaa ena for atary
thirtr ihooMad.' ,
" It te now iMoe«Mry to ace what there waa furtbor oty'ectionabfc in tUa bQL THj
runnber of one hnadrel and twelve tnemUta waa all that could ha divided anood
StaU* willioiil giving to aome of them mote than one mtmher for tlilrly tliounnd in*
haliilaaU. Thetefora, haviag alletlad theae one hnadred aad twfln^, tlx-n- etiU re-
mained right cf the one hmdrad and twenty t* W aMJgjMd ; and Ihcw ei^t the biUi
aaigned to the Statea haviig the laigeat fnctioaa. Some of theu fnriioaa
larm and aene were inaalL No regard ma |md to fiictio** over a Moioiy of ibf
ntle^ any nunre than to CractloM under U. ^un vaa ne mla laid down, atatiiig «lut
fnu^ona ahonld cMlde the Stttca, to whoa th^ ml|ht happen to hll, or in wh
popalatlen thay Might ha{ipM to ha fovnd, to a itfevniilallve therrfor. Tbe aaaiga-l
ment wu not nude on tho prindpl* Ib^t aaeh State alte«U hare a Meaber for a frac-
tion greater than half the ratki ; or that all the Rtatea ahonld have a membsr for 4.
freetion, in all oaaea where tbe allowaikcfl of tneli raamber wonU hring her rrfir
tion nrarar to fta exact projwetion than ita diaallowanae. Tttaw wu no oama
nieamre or eewitteai rnle adopted, but the •wgimiont wat nkaiiar of arbUmy
CB. IX.]
BQWF. OP BETRBSENTATirea.
€U
from alt the emhan-awtnit-nts of o]>po8iDj; tlic pofHilnr will; and
the timiAv from ull tlio irritatiou of nut consultiug tho cabinet
w illicit.
§ G88. The other power, the tole power of impeachment, has
a far widvr suupo and operation. Aa iuipcachmvut, as dvHcribcd
N
«I*I(oil. A inumbH- wm ■llmrfd (o New nantptluK for cmuDplv, tor a fractioD of liM
tiian Mid half llie ntio, tliiu placing h(^c nprawnUIlan (urtlwr froiu htr sx»d pro-
porUon tlMS it vm withont tuch aiUitMiial mnnWr ; «hit« * DNiibn- teas reroiol to
Gtoigk, wboM miB elMtly reMnililwl tbal of New Uunialun'. bgth having what
wcTB t]iau)tht laigt fracttoiu. bnt both ttiU nndar * mowtr of tho ratio. bd4 dbtla-
guUlnad from tuli oiImt «oi]r (7- • tvtj «li^ diRcrcaeo of abaoluM tiuBibwt, Tlio
coninltiei bare alnaily fuUf nipwtj their cplBlon on toA a modv oT atipor-
tionnwnl.
" In trgard to Uii* cbnclM of the bill, Prcaident Wiu>biii](toB wid : • Tb* Coiuti-
tntion lua |>T«*ortbKl tLat rrprtacntatiTBa ahall bo a]iporUon(ul ainong; tlii aortnl
StatM •oconling to their twptctire BBinbcM ; and th*r« i» no oiiv pruportirai, or di.
*iior, wfaiih, applied to iha rMjMctlT* Duinbcn of the 8tat«a; will jrield the nnnbar
•nd allotnicnt of nfotHntatlva* pTOpooal by th« bill.'
" Tlii* WM all Diiilonblcdijr tint, and wai, in tlic jid)[inciit of iha a»>■nilt•^ a
deviaiva olgsctioa ^ainit tlie UIL It b ncvcnlii-lnM 10 bu abvrrtd, that thr otLvc
(dyeetlon complctclj cflvrrnl tlii> whole ([ronnd. Tlivra rauld, in tkal bill bo no allow-
■no* for a fnu'tion, grvaX or wnnW : bocatiM Coiif^raa had lolcm for the ratio tbo lowMt
munbcr alluwol by the Conitituiion, vix., thirty thotuand. Whatarar fnction a
Stale Mi|[hl baVD Wm than that ratio, no moiahcr <uald Iw altovod Gw it. It is
■earotly naewiiy tn obaerrv that no luek •t^vction apptica to (he aixadMMit new
propOMd. Va State, ahould the amrndmcait ptvnjl, will hare a gnater KaMber ot
mtmben than mtr tar rvnrj thirty thoiuMnd ; nor b it likrty that that obJ««tiaD
will eTCT again o-r%r. Tlio whoU tarre at Uio proeadant, whalerar il bo. In it* apfji-
ealJoR to the pramt uae, a drawn from th* other oljKiioii. Akd what is the true
Import of that ofcjcction t noun It mean anything more than that tho apportk<iiiiMit
wu not mad* on a oomoioii rule or prlodplc, applicable and applied alike to all the
StaLaar
" Pmidrat VaUiington'R word* aw, • There i* no one proportion or dirltor, which,
applkd to the rupectiTo numbtra of Ibc Slatea, will yMd the number and oIlotMcat
of Hpimntatiit* propoanl hj th# bilL*
" If, tlmi. ho oonid hare found a ooanmMi pi«pnrtloD, it wonld have rcnwrad Ihb
otifaotioa. lie reqiiind a preportion, or diTlaor. Thcao wiirlii hn *>'ir|rnlly uaM aa
explanatory nf eath olhtr. Be moant by dintor, thenrror*^ uo mora than by pnp«r-
Hon. Wlut ho asivht WMt, M«i* coumoa asd aqnal nU by whitli the allotment had
been mad* amnnff the wetml 8(«t«« ; be did not And ndi <oninMin rale ; aad on that
ItMnnd he Ihnught the bill al(jectUnaU«.
"In the optniao of the wwilHe«v no inch olgettiai apptSta to tho amendment
teraiBiiMnded by them, ^at anandmrnt fcirea a rule, plain, dvpte, jnit, nnitorm,
and tt mivmal appUrallon. Ttw rale haa been fteqnentty atalod. It may be dearly
expmaed in *4tli>r of two way*. Tj*t the mk b», thai the wM* number of the [•»•
pBatd Hontr (hall be apportioned amoag ih* arrerat SWlrt aoeHnlinft to their raipao-
live niimbrn. giring to Mch State that nsmbm- «f iMaben whkh coon* n*M«a to
her rxnct malhemalkal fu^ «r prapottiaa ; or, M tlM ralo ht, that the p^pukHaa <<
612
coxanTCTioN op the dnited states. [book IB.
in Uie commoa law of Eiigiand, ia a presentment by the House of
CcnunoDM, tbe most eoleuui f^rainl inquest of the whole kin^otn,
Mch State ihaU be diridad bjr • eominoa diriaor, md tbit, in ■ddilion to tb* itinnt«r
of in*mb«*« maliuig tma nch divudiM, a mcmkr ahatl tw allovad to meb StaM
wboM rimotioti excMd* a niobt; of Um dlriatr
" SilbtT of ibftt is, it Btean to the MMnHtM^ a fair and |nft nilr, at{>*1>l« ot uii-
fatm a{>fiU<«iMii, and opentiuj vHb entin impHtUUt]:. Tlinv i> no waiit of ■ con-
man praportlon a* a Moamoa diruor ; tlwre U ■othing kA to nrbitnrr diBcrctioa. If
th« rula, (n ritlwr of Axm tonat, ht adoptad, it can never be danlitfnl how tmrj
nnnliFr oT any propnMd nnnVr for a noiuo of Btfffmentaliva* ought to ba aaalgned.
nothing win be Irfl in thi- diacrvliou of Congraga ; tb* ri)tht <f Moh State will W a
mtthematinl right, oioily aBceTtaincd. about wbiuh tbtre on be nritlier iloubt
dlfllcnlty i and, in tbe apfJioatlaD of tb« rale, Ibm will be no tooni for prcferono^l
panUtitf, or liynallc*. In any ca**, ta all time U> rome It will do all that koman
meant can do, to kltot t« OTcvy State in ihe ITiilon its pro[wr and JiM propottkii of
reprnentatire pown. And it it bwaoM of tlii< ita caiiabilily of (octtsnl ajipUcatSn^
aa wiJt aa bocanae of it* impartialitjr ud jintic*^ tbu tbr ooounittee an sanMat to
noomDimdlati Ita adopthm to Oongiwa. If It diaU ho adofitod. tb«y tKUevo It wiD
nmore a cauie of ancatiiieti a&d ditattfafactlon neurring, or UaUe 10 ntar, wUk
*Ttij new tenioi, and pUc« tbe right* of the Stalea, is thi* nspeot. OM a lixcd taii^
of whidi none an wltb naaon (omplain. It is true, that tbtnt my be Mine nomben
aanmed for tha cumimtltlcai of the Iloaw nf RopmrBtatlTat, to wbtch, {f tho nie
w«r« applM, ih« nniU might give a nit^niber tu lb* Hom* mora Ibui wu propowd.
Bat it <ril| bR alintyB eagy to comet this, by allvring tbo ptofoaed ttunibcr t^ aiUiag
one to it oi lAking one front it; ao that thia can b« cooaidarad no otjoctioin to tb* i
"Tbc committer, in Donckiioii, cannot adrntl that tt I* fuftcbet reMon for lO-^
Jecting thI* mud* of appottloomunt, thai a diifrrent pracni baa bentofore pnTailtd,
Th« truth ia, the errore and ioei|Ualitiei of that procM* <rere it ftnt not obvioM
•tortlin^ Bui Ui«y hare gone on incrtaang ; they are gmitly augmented and
mvlated ereiy new tcniui ; and it u of tho very natura of tbt proona Itarif, tbal lt> '
uujost wamlw iimM rtow grrnttT and urreiter in profufftton M the ]wpul*tia«i of tbe
country enUrj!**. What wiu oliji^louahla, though tulonble yealenlay, baoamaa in
toJcrahIo lO'moTTow. A (^haiigp, tho oommitto* arc penuadcd, mint own*^ or
whole jut balance and proportion oi repreaentatirc pocccr amoNg tho Staiiti will b*
dlalnthtd ani! brolun np."
Mr. RvnHI aUo mad* a Tary able ipMcb o« tbt tame nitjwt. in vhkh he
some additional aigumontt wttb p«at tore* on tb« camo aide. See b'u printed
of 17th Uay. ]$33. (4
Is) Although tbt* report did nAt ba-
coma the hasia of tho apportionment In
ISS^ yet It WM actually adot>t«l aa tb*
haaia, in tbr ai^pottlonment in }gll, under
tho new cenima. By the Act of iM oi
JoBik 1S43, the ratio vai adoptnl of
70,<M, and «*efa 8UU waa doekMl an-
titkd to IB Muy wffaawHattwa a> it*
ledunJ fOfnlatMOi wuutd give diriJcd bj
that MBbMr. and abo to one addittanal
member «pon lb* rtaaining baction, if
It* popvlation aMaaded balf of tbal i
bar. Ertry dacida bow brings • i
in the bMia of ntnoMntatioai, and
tu aoNW inmaM in the nsmbcr ot i
•enlattvau But wilbal aama lMai|Ualily
swBii uaaroldaM* ; for pofmUMoo b 41 a ^
ataMUtlU ia wome Suioa, whilt ia
tbM» U vait incwaai in the ooor** of i
yaan, aud that incmte ha* m npiiiwi
bttioa.
BOUSB OP BEPBESENTATITIB.
S18
I
I
I
to the TtouBO of Lords, tho moat higli and Bupronao court of erim-
inal jurisdiction uf Ihu kin)nloui.' Tlioarticlej of impoachment
are a kind of bill of Indititrnviit found by th« Commons, and tried
by tliv Lord», wbo urc. in cones of misdoiucHiiord. considorrd, not
only HB their own |>ecra, but as Uio pecr» of the wltolu nation.*
The origin and liistorjr of th« jurisdiction of Parliament, in <»kMs
of i iiiiK'achinont, ftre summarily ^tcd by lilr. W(M>de»on: but
little can bo gatlkered tberefrotn which is now of umcli interest,
and, like most other legal antiquities, tliey arc inrolvcd in
great obscurity.' To what claRMit of offender* Diis apidie-s, will
be more projterly an in<]Uiry hereafter. In the Con»titutioD of
the United States, the House oi Rcprosentatives exerciftcs the
functionn of the Iluuse of Commons in rej^rd to impcachmenta ;
and the Senate (as ve ahall hereafter see) the functions of the
House of Lords in relation to the trial of the party aecuaed. The
principles of the common law, so far aa the jurisdiction is to be
exercised, are deemed of primary obligation and government
The object of pruKVCutions of this sort in both countries is to
high and potent offenders, snch as might bo presumed to
eMapc punishmi'nt In the ordinary tribunals, either from their
own exlraurdinury influence, or from the imperfect organizatioa
and powers of those tribunals.* These proaecutiona are, there-
fore, conducted by the roprcsontatitea erf the nation, in their pub-
lic capacity, in the face of the nation and upon a responsibility
which is at once felt and reverenced by the whole community.*
The notoriety of the proceedings, the solemn manner in whicli
they are conducted, the deep extent to wliieh they affect the rep-
utations of the accused, the ignominy of a conviction which is to
be known through all time, and the glory of an acquittal which
BBcertaliu and confirms innocence, — these are all calculated to
produce a vivid and lasting interest In the public mind, and to
gi\-« to such proaiecutions, when necessary, a vast importanoe,
both as a check to crime and an incitement to virtue^
§ 689. This subject will be resumed hereafter, when the other
provisions of the Constitution, in regard to impeachments, oome
■ a HaI*'» pi. Cr. 150 : t Blade Conm. U« ; 1 WOmm'i Uv Leot. !«$. IM.
* i BiMk. OemM. WO. * 2 Woodeun'* Lcct 40. p. fiM, Ac
* 4 Bbck. CoMin. SSD i Bt«l« «a the Coiwtitatian, eh. S2, pp. 110, 211 ; 3 Woodo-
•m'i l.c«t 40, p. S9t, lu.
* RawU on lh« ConMitntioii, di. S^ p. Ut.
VOL. I. — M
614 COMSTITDTIOH OF TBB UNITED STATSB. [BOOK m.
under review. It does not appear that tlte vesting (A the pover
of impeachment in tlie House of Bepreeentatives was deemed a
matter of serious doubt or question, either in the convention or
vith the people. ' If the true spirit of the Constitution is con-
sulted, it would seem difficult to arrive at any other conclosion
than of its fitness. It is designed as a method of national in-
qurat into the conduct of public men. If such is the design, who
can so properly be the inquisitors for the nation as the represen-
tatives of the people themselves f They must be presumed to be
watchful of the interests, alive to the sympathies, and ready to
redress the grievances, of the people. If it is made their duty to
bring official delinquents to justice, they can scarcely fall of per-
forming It without public denunciation and political desertion on
the part of their constituents.
> Jouinal of Convoition, pp. 69, 121, 1S7, 225, S26, ISS; 8 EUiot't DabtlM^ 4^
41, 45, 48.
CB. X.]
TUB SKNATB.
616
CHAPTER X.
THB 8EKATB.
f vBO. The third sootioo of the first article relatca to the or-
guiiuitioQ and powers of the Senate.
§ 691. In coiuiderliig tlie orgauization of the Senate, oiir in-
qulrlM naturally lead its to aoccrtaiu, Gr»t> the nature of the
repreeentatioQ and vote of the 8tat«» therein; ticcundl)-, the mode
ctf appuintment; thirdly, the number of lh<! Bcimtura; fourthly,
their tf-Tia of service; and, fifthly, their qualifications.
§ 692. The first clauae of the third section is in tlie following
words : " The Senate of the United States shall be composed erf
two senators from each State, chonen by the lef^iaUture therotrf
for six years; and each senator shall have one vote."
§ 693. In the first place, the nature of the representation and
vote in the Senate. Each State is entitled to two senators ; and
each senator is entitled to one vote. This, of course, involves
in the very constitution of this branch of Uie leirislature a perfect
equality uinong all the States, without any reference to their re-
spective siie, population, wealth, or power. In tliis respect
there is a marked contrast between the Senate and the House of
Repfescnlative-s. In the latter, there is a repi-esentation of the
people according to the relative population of each State upon a
given basis; in the former, each State in its political capacity ii
represented uyion a footing; of perfect equality, like a congress of
sovereigns or amhaiuiadors, or like an anscmbly of peers. The
only difference between it and the continental Congress under
the old confederation in, that in thi» the vote was by i^tates; in
the Senate each senator has a single vote. So that, though they
represent States, they vote as individuals. Tlie vote of the Sen-
ate thus may, and often docs, iKcomc a mixed vote, embracing a
part of the senators from some of the Status on one side, and an-
other |>art on the other.
§ *}94. It is obvious that this arrangement could only arise
from a compromise between lndo|<endent States; and it must
have been less the result of theory tlian " of a spirit of amity,
516
COKSTITUnON OF THE UNtTED STkttB. [BOOK lU.
and of mutiiAl deference and concession, which the peculiarity of
tlie situation of (he United States rendered Indispensable."' It
coitHtltiit«d one of the great tttniggles l>etween tlie large and the
small States, which was coogtantlj' renewed m the convention,
and impeded it In ererr step of its progress in the formation of
the Constitution.* The utruggle applied to the organization of
each branch of the leppslature. The small States inslnted u|Hni
an equality of vote and roprcaentation In each branch ; and the
lar^e Htates upon a vote in proportion to tbelr relative Impia^
tance and population. Upon thia vital question there waa so
near a Imlance of the States that a Union in anr form uf ij^rem-
ntent which provided either for a perfect equality or Ineqaallty
of the States In both branches of the IcBislature became utterly
hopeless.* If the basis of the Senate was an i-quulity of reprO'
scntatiou, the basis of the House must be in proportion to the
reliitin: population uf the States.* A vompromUe Vi'aa, therefor^
iDdispcosable, or tliv convi-ntlon must be dissolved. Th« anuU
States at length yielded th« point as to an equality ot represen*
talion In the Kouse, and acceded to a p-pn-m-ntation proportion-
ate to the federal numbers. But they Insitttcd upon on equality In
tlie .Senate To this the large StatL-s wer« onwiUinx to assent]
and for a time the States wore, on this iwint, equally divided*
Finally, the subject was referred to a eommittoc, who reported a
scheme which became., with some aineudiuenta, the basis td thfl
r^MPesentatlon as It now stands.*
§ S9;>. The reasoning by which each party In the convenHoo
supported its own project naturally grew out of the relative sit-
uation and inte-reata of their respective States. On the aide of
the small States It waa urged that the gencrttl govemmpnt ought
to be )iar11y federal and partly national. In order to secure a just
balance of power and sovereignty and ioRuenoe amonf^ the Ststoa.
) UMMef Ui*Cuif«iitlaa. ITtit of Sept. I'tJi 1 KMt CiMmK. (11, ff., Zlfliirt.
• S Pilkin-* HM. tXK S4S, ti7. US -, Yttnt lUnnta, I EtlMti tttimtm. <8, 74,
n,a,»*.9f>,*i.n. i<l w. loo^ in t u. lor, itciiStoiM, u. 12s, i9(i,u7)
1 EUiat'a VOmim, 14.
■ 9PltUn^llut.ns.lU; Ja«nnl<r teOMnvUott. 113.
■ Oa tkk nhfMt M* tb* JmrmI of Aa CtaiMtioo. ill, ItX ISS to US. Itl.
ITS. ISO. SS5, as^ 197, S38 : Tiu*-* MiBrtu^ « EOM't Uhita, ban « to m.
* S Ftdcin'* Hh*U5ti»nMl •rOawMCUa.M Jsly. n>- IK US; Id. ]«S,
175, irs, IM.tlli V*Mi-* K)mrt«,4 HIM-* DAMm. lU to IST: 1 Am»t. Mor
■n,379.
■ 1 KUM** ttUtm, «T I Jousd tt CMtwiin. IR.
THE B£NATB.
617
I
This )8 the only means to prvsen'i- small communities, when M>
sociating with lui^r, from being overwhelmed and anoihilatod.
The large t<tutuH, under uther circwnetuaoes^ would naturally pur-
sue their own luteresto, and by comhiuatiuns usurji tlie preroga-
tives, or disregard Uic rights, (A tbo smaller. Ilitherto all the
^tatoa hud held a footing of oqtinlity) and no one would now be
willing to surrender It. Tlio course now proposed would allay
jealousies and produce tnuiqulllity, Any otlier would only per-
petuntc dincontents and lead to disimiua There never was a
confederacy formed where an equality of voice wna not a funda-
mental principle. It would be a uovcl tliinf; in polities, in such
cuHeit, to permit the few to control the many. The large Stntcs,
apoti (he present plan, have a full security. Tlie small Htulcs
must poesesa the jiower of self-defence, or they aru ruined.
$ 696. On the other hand, it was urged that to give an equal*
ity of vote to all the ^States was adopting a principle of gross in-
juatico and inequality. It Is not tnie that all confederaclejt luive
been founded upon the principle of equality. It was not ko In
the Lyciun confederacy. Experience has shown that the old
confederation is radically defective, and a national government
is indispensable. The present plan will defeat that object
Suppose the first branch grants money; the otlter branch (the
Senate) might, from mere State views, countei'act IL lu Con-
gress, the single State of Delaware prevented an embargo at the
time when all the other States thought it alisolutety necessary
for the su}iport of tlic army. In short, the Senate will have the
power by its negative of defeating all laws. If this plan pre-
vails, seven States will control the whole; and yet these seven
States are, In point of population and strength, leM than one-
third of tlie Union. So that two-thirds are eom|H>Ilablc to yield
to one-third. There is no dangi-r to the small Status from the
combination of the large ones. A Hvalry, rather than a confed-
eracy, will exist among them. There can bv no monarchy; and
an aristocracy is more liltely to arise from a combination of the
small States. There ar*^' two kinds of l>ad governments; Uie one
which does too much, and is therefore oppressive, and the otlier
whIcJi doc« too Utile, and is tlierefore weak. Tlie present plui
will fasten the latter upon the country. The only roosonaitte
principle on which to found a general government is, that the
decision shall be by R majority of tnembera, and not of States.
518
COSSTTTUnOH OP THE OSITED STATES. [BOOK HI.
No adrantAge can poBsiblf be proposed br the large States by
swalloviitg up the sninUcr. Tho like fear cxlstvd in Scotland
at the time of the union wKli England; but U has turned oat tn
bo wholly vithout fuundntiun. Upon th« present plan, the
smatlor Statc-s ma}- awallow up the larger. It was added hy oae
most distinguished Ht»t«smaD ' (a) (what h«a hitherto proTcd pro-
pheticuHy too tnie), lh»t the danger was not between the aBull
and the large States, "The great danger to our general gowm-
mciit is, the great southern and northern interests of this cant
nent Iteiu;; opposed to each other. Look to the rotes In Ooi
and most of them stand divided by the geography of the coantiy,
not according to the siie of the Stattw."*
§ 697. Wliatever may now bo thought of the reasoning of the
contending parties, no person who possesses a sincere Iot« of
cotmtry, and wUhen for the permanent union of the States, can
doubt that the compromise actually made was well foanded tn
policy, and may now be fully vindicated upon the hi^est princi-
plefl of political wisdoni, and the true nature of the goremmeot
which was intended to be established.
§ 698. It may not be unprofitable to revicir a few of the gronnds
upon which this opinion it) hazarded. In the first place, the very
structnre of the general government C0fltemi)l8ted one partly fed-
eral and partly national. It not only recognised the exfstenoe of
the State goremmonts, but perpetuated them, leaving them in the
enjoyment of a large portion of the rights of sovereignty, anj
giving to the general government a few powers, and those onlj
which were necessary for national purpnsra. The general gov-
ernment wim, therefore, npon the acknowledged basis, one til
limited and circumscribed powers; the States were to pcsseos'thB
residuary powers. Admitting, then, that tt Is right, among a
people thorou^ly incorporated into one nation, that every di«
trict of territory ooghtto have a proportional share of the
emment; and that among Independent States, bound togetlnr by
< Ui. Midim.
* Thb nittiiiu7 i* ftfattrMM princiiMtty tnm TUm'i lOaorlM <f tkf DvUtM, i
l.utber Mutin'a Utts and SpMvh, Jnftiuf? ST, 17BS. Sr« kUrtfn'i Lnt«r il
eillM'* IhiiM**, 1 W 65. 8» TatM-i HisalM tn t Elliot'i Dthtim. 68 ; bU 74, 75.
81. S» to »S. M to 1091 107, laa. 112 to 1S7 ; S Pitkin'i Hi>t. 33S to MS. 8m ite
Tlu rdknUM, No. S3.
(«) 8m >l*o life ind WritUif* of Jtam Inddl. H. SS«. SSS.
CH. X.]
TIIE 8RNATE.
519
» simplv lea^e, tb^rc ought, on tJio other hand, to be an equal
ftharc in tliu comiuuu couui-iln, whatever luight be their relative
siw or Htrcngtli (buth of which propositions nre not easily con*
trovertMl), it would follow thnt a eompound republic, partaking
of the ehnracter of each, ought to Iw founded on a mixture of
prnportional and of equal reprosotitation. ' The legislative power»
being tliat nhich i9 predominant in all govemnienla, ought to b«,
above all, of this character ; because there can be no securitjr for
the ^neral government or tlie ^tato goTernmeiita, withnut an
adcquau^ rcprcflentatioii, and an adequate check of,cach in the
functions of legislation. Whatever basis, therefore, is assumed
for oiip brunch of the legislature, the antagonist basis should bo
UHSumed for tlie other. If the flouse is to bo proportional to the
relative size and wealth and pop«lati<Hi of the States, the Senate
(iliuiild be liscd upon an aliaolute equality as the rcprcaentative of
Htute sovereignty. There is so much reason and justice and ae-
oority in such a course, that it can with difficulty be overlooked
by tboflc who sincerely consult the public good, without being
bioswMl by the interests or prejudices of their pveuUar local posi-
tion. The equal vote allowed in the Senate is, in this view, at
once a constitutional recognition of the sovereignty remaining
in the States and an instrument for the preservation of it It
guards thorn against {what they meant to resist, as improper) a
consolidation of the States into one simple republic;^ and, on the
other hand, the wei^t of the other branch counterbalancM an
undue preponderance of State interests, tendin); to disunion.
§ 699. Another and most important advantage arising from
this ingredient is the great difTereucc which it creates in the
elements uf the two branches uf the legislature, which constitutes
a great desideratum in every practical division of the tegislatiro
pi>wer." In fact, this division, as has l>een already intimated, is
of little or no intrinsic value, unless it is so organized that each
can operate as a real check npwi undue and rash legislation.
11 each branch is substantially framed upon the same plan, the
ad\'antagPR of the division are shadowy and imaginative, — the
Tisions anti speculations of the brain, and not the waking thoughts
> Tin FedomUct. Ko. 03 ; 2 Anar. Umtaa. S7«. STS.
■ The Fxicralut. Ki>. ti | Itawfe on Oooftit. 34. 37 : 1 Rnit, Cooun. LcoL 11,
FPl 110, 11] ; 9 Amor. Mobmiii. STS^ 3*9 ; 1 Tackeft Bluk. Coum. App. IVS.
* 2 WUwn'* U« Ltot. 118, 147, KS.
520
CONSTITtmON OP TBS UNITED STATES. [BOOK IIL
of atateftmea or patriuU. Xt mujr be safclj- owcrted Uiat, for si)
the purposes of liberty and security, of stable lam and of aolid
ioHtitutioiu, of porsoonl righta and of Uic protection of prop-
erty, a sini^lu branch ia<]uitc aa good a» tvo, if Ihtur cumpo«itioD
is the itamv and their spirita luid impnlsca tho Kumo. Eacli will
act aa tliv uthi'r ddou; iind ejich will be led by the siudc commoo
Influouce of uinbilion or intrigue or piusion to tho same disregard
of tho public interests, and the aame indifference to, and proa-
tmtion of, private rights. It will only bo a duplication of (he
«vils of oppression and roshncsa, with a duplieation uf ohstrac-
tiona to «ffcctir« rcdrcM. In this i-icw, the organization of the
Senate beoomes of inmtlroable value. It represents tho voice,
not of a district^ but of a State ; nut of one State, but of all ; not
of the interest of one Stato, but of all ; not of the chosen porauita
of a predominant populution in ono 8tate, but of all tlic puniuits
in all the States.
§ TOO. It is a misfortune incident to a republican govern-
ment, (hoii^ti in a loss degree th&n to other govern menta, that
those who administer it may forget their obligations to their con-
stttnenta, and prove unfaithful to their tni»t8. lu this point of
view, a senate, as a aecond branch of legislative power distinct
from, and dividing power with, the linit^ must alwnys operate as
a salutary check. It doubles the security to the peopli>, by re-
quiring the concarrence of two distinct bodies in any sdieme of
nanrpation or perfidy, whore otherwise the amliition of a single
itixly would Im) sufficient. The improbability of sinister ctunbi*
nations will always be in proportion to thu dissimilarity of the
genius of the two bodies: and then^'fore ever}' circuuuttanco con-
aistcnl with harmgny in all proper measures, which points oat s
distinct organixation of tho component materials of each, ia
desirable.'
§ 701. No system could, in this respect, be more admirably
contrived to insure due deliberation and inquiry, and just results
in all matters of te^tslatioa, Xo law or resolution can be paascd
without tlio cuncurrence first, of a majority of tho people, and
then of a majority of the States. The interest and passions and
prejudices of a difltrict are thus checked by the inHnence of a
whole State; Uie like intcrcata and passions and pri'^judices of a
Stat<v or of a majority of the Stntca, are met and controlled by
I The FoitMllst, Xo. SI
CB. X.]
THE SENATE.
521
tlie Toioo of tbo pooptc of the n&tioo.' It tnav be tliougrht that
thin complicHt«d system of checks may operate, in some in-
stnnnit, injuriously as wvll as bcnoliL-iiilly. Itut if it nhouM oc*
casionally woric unequally or injuriously, its general operation
will b« Balutary Mid usvfiil.* The disease moat incident to free
t^voninicnts 5» the fucility and excess of lawmakini;;' and
while it nirver can be tliu permanent interest of either branch to
Interpoee any undue restraint ujton the exercise of all fit lefiisls-
tion, a pyyA law had better occasionally fail, rather than bad
laws be miittipliod witli a hcodlesa and mischievous frequency.
Even reforms, to be safe, must, in general, be slow; and there
con be little dnngvr that public opinion will not sufTiciently
stimulate all public l>odic8 to cliangv* which are at once doslrablo
and politic. All ex|)crioncc proves that tho human mind is
moro ea(^r and restless for chanfres than troiiqnil and satisfied
with existinj; institutiuns. licsidcs, tho lorjro States will always
be able, by their jwwer over the supplies, to defeat any unrea-
sonable exertions of this prerogattro by the sninller States.
§ 702. This reasoning, which theoretically sts'nn entitled to
great weight, has, in the projrress of the gni,-ernmcnt, been fully
realized. It has not only been demonstmtcd that the ^nate, In
ita actual onfanization, is well adapted to tho exigeneies of the
nation, but that it is a most important and valuable part of the
system, and the real balanocswhccl which odjusta and regulat4M
its movements.* Tlio other auxiliary prnvisinna In tho same
clause, as to tho mode of oppointment and duration of office, will
be found to conduce very largely to the same Itenoficial end.*
§ 708. Secondly, the mode of appointment of the seiiatorB.
They are to l»o chosen by the legislature of each Pfate, Tlirec
schemes pi-escnted themHclvea as to tho mo<!e of appointment:
one waa by the legislature of each State ; anulhcr was by the i>c«-
pie thereof; and a thii-d was by the other braneh of tho national
lepslatare, either directly or out of a select nomination. The
last Bcheme was proposed in tlw convention, in what was called
I TlM PathmlU, No. 17.
• TW P«a<tnli«, Ko. <9 : Ttta't Mintw, 4 EUiot't DttatM, 03, M ; S VOmm'*
JM-Lect. HC 147. lis.
I s The Fedtnlid, No. Sa i 1 Kfttfi Conua. LMt. 11, VP- ^% 313-
■ S WlUm'i Uw LnL 1 18.
• hm FMimiut. Ko. as.
522
coKsrrmmoK op thr dntted states. [^boos m.
th« Vii^inift sohcmc, one of the rcsohitiooa declaring " ibat Uie
iiicmtwrii of tho second bmiich (the £>cna(c) oiigiit to be elected
by tho«e of tho tirtt (the House of Repre^ntativcs) out of a
proper number nomiiutted by the individusl legislatures" {of the
State*)^ It met, however, with no decided wipport, and was
negntired, no 8tat6 votiug in its favnr, nine ^tat4>B voting against
it, and one being divided.' The fK^rond scheme, of an election
br the people in districta or otherwise, seetna to havo met with as
tittle favoi-.^ Tho first sc-home, that of an election by tha legia^
lature, liually prrvailcd by an uuanimoug vote.'
§ 704. The rcasoniDg by which this mode of appointment
sopportrd dws not ap|>oar at large in any coiilemporary dobat
But it niuy be- f^thcri-d from the imperfect lights left ua,
the main grounda were that it would immcdiutoly oonnvct the
State governments with the national govcmntcnt, and thiis bar-
monixc the whole into one universal ayslcm; that it would intro-
duoc a powerful check upon rash legislation in a manner nut
unlike that created by the difTerent orgnni/ations of tlie House i
Commons and the House of [jorda in Great Hritain; and that f(^
wo!iI<l increase public confidence by securing tlio national gor-
emment from nnduo cncroacbmcnts on tho powere of the i^tatos.^
The Federalist notices the subject in the following brief
summary manner, which at once establislies the general coDsei
to tho arrangement, and the few ohjectinna to which it was 8U[
posed to lie obnoxious: "It is unnecesaary to dilate on the Ap-
pointment of senators by the State legislaturea. Among the
various modes which might have beon deriaed for constitnting
this branch of the government, that which has been propiwed by
the convention is probably tlie most couiTcnial with tho publio
opinion. It is recommended by tlie double advantage of favoring
a select appointment and of giving to the State governments sacl
an agency in the formation of the federal guvcmment as mi
secure the authority of the former, and may form a ooQveoicnt link
> 8m Mr. R«n<lo1iih'i ftfUi BeMttatien, J«am. of ConnntiaD, 67, 88 ; Tatofi Mia- ■
otM, 4 Blliot'i Debum, 58, 99.
> JoiriMl of OiRTMllM, led, IM, IM ; Tktn'a Uinoto, 4 ERIafl DrfaM, SI
59, a, «t, 99 to lOS.
* J««rn. or OeovanUon. lOS, IIM, I4T, 907, SI7. tSS: 7at^* Uimim. i ZlUot'a
DcUtM. «, <4.
* TatN'i UinobM, 4 EUiot'a DOMm, «t 6S, «t ; 8 Qliot'a DctialM, tflL
CH. X.]
TBS SBKATe.
£S8
between the two Bj-Btcmg."' Thia ia very trabdued praiae, and
iD<JicitC8 more do«bts thnn oxpcriooco baa aa yet justified.'
§ T05. Tho CoDSlitiitiun hiia not prmtdcd for the inuuner in
which the clioice shall be made bj the 8tuto Icjrislalurcs, whether
by ft joint or by a concurrent vote; the Uttur ia wbcro both
branches form one assi^nihly and give a united vote nun>cric«lly,
the foniier is where each branch gives a separate and indepen-
dent vote.* As each of the 8tate legislatures now oonsiets of two
branches, this in a very important pra/'tical question, (lenerally,
but not universally, tho choice of Benatora is made by a concur-
rent Totc* Another question might be soggcHted, whether the
executive crautilutes a part of the legisUture for such a purpose
in cases where the State conBtitution gives him a qualified nega-
tive upon tlie lava. But this has been silently and universally
settled against the cxocutirc participation in the appointment
§ 706. Tliirdly, tho number of senators. Each State ia en-
titled to two senalon. It is otmous that to insure competent
knowledge and ability to discharge all the functions intrusted to
the Senate ("f which more will be said hereafter), it is iudispcn-
aable that it should consist of a numljcr sufiicieiitly large to in-
Hiiro ft sufficient variety of talents, experience, and practical skill
for the discbarge of all their duties. TIio le^alative power
elooe, for its enlightened and prudent exercise, requires, as has
been already shown, no small share of patriotism and knowledge
and ability. In proportion to tho extent and variety of the la-
bors of legislation, there should l>o members who should share
them in order that there may be ft punctual and perfect perform-
ance of them. If the number be very small, there is danger that
some of the proper duties will be overlooked or neglected or im-
perfectly attended to. No human genius or industry ia adequate
to all the vast concerns of government, if it be not aided by the
power and skill of numbero. The Henate ought, therefore, on
■ TU Fxlenlist, Km. «% S7 ; 1 E«iit'a OcKUM. LmI. 11. f. 211.
■ Sm iIm The PnUralkt, N'o. S7.
■ Rtwb mi CoMtil 87 ; Ktut'% OMam. LMt II, pfk S11, fll.
* t Rn»*> Conin. Lact. II. pp. SU, SIX. Mr. Cbraotllor Ktat my, U tu> Ooof
MrauriiM (1 Hint'* Coma. Ltct. 11, p. US), tlict ia !f«w York Uie Miuton ira
•lMt«d tj ft Joint nit, a Iha twa Immim do art wpwvUlj oomouT. Bat lit own
ofrinioa k, tiMt Hw trae eoMtnwtiaa ef the Cuutitatioa apoit piacipb ia, that (t
•Iwald ba t^ ■ wwcBiwt T«t«> |a|
H It it BOW npiUtaa hftfUot ON^rm of Jvij tS, 1M<.
6Zi
OOXSTITUTIOS OP THE 0U1T>3) fiTATES. [bOOE Ol.
this account alone, to be somcwbat numeroua, thongb it neeil not
aoA indeed ought not, for otlier reasons, to be as numerowt as the
Houae. Besides, numbors arc important to (fire to the hody a
suflk-iont finnni.'sa to resist the iofluonce which the popular branch
will ever be solicitous to exert over tliem. A very small bo«l5
is moro easy to he overawed und intimidatod and ooutrolled hy
external intlucuces tJian one of a riNUtonable size embracing
wcii^ht oE character and dignity of talents. Xuinbcni alono in
many cnscs coriTor power; and, what is of not lens iinjiurtance,
they present more rcaistanoo to corruption and luLi-i^e. A body
of five may bo bribed or overborne, when a body of fifty would be
an irresistible barrier to usurpation.
§ TOT. In addition to thia consideration, it is desirable that a
State should not be wholly nnrepresenied in the national coun-
cils by morn accident, or by the temporary abaencc of its repre-
sentative. If there be but a single representative, sickneas or
casualty may deprive the State of its vote on the most important
occasions. It was on thia account (aa well as others) tliat the
confederation entitled each Stale to send not leas than two nor
more than teven delegates. In critical eases, too, it might be of
great importance to have an opportunity of oonsultHifc with a
colleague or colleagues having a common interest and feeling for
the State. And if it bo not always in the strictest sen^e tnte
that in the multitude of counsel there is safety, there ii a suSi-
civnt foundution in the infirmity of human nature to make it de-
sirable to gain the advantage of the wisdom and information and
roflevtiou of other independent minds not laboring under the
suspicion of any unfavorable bios. Tlicse reasons may tx* prfr
aumod to have biid their appro]iriute weight in the del i)>erat ions
of the convention. If more than one representative of a State
was to be admitted into the Senate, the least practicablu ascend-
ing number was that adopted. At that time a single rvprescuta-
tive of each State would have made the body too small for all the
pnrpoHes of its institution and all the objects l>efore explained.
It would have been composed but of thirteen, and, supposing no
absences, which could not ordinarily be calculated upon, seven
would constitute a majority to decide nil the mt-Jisuros. Twenty-
six was not at that period too large a number fur dignity, inde-
pendence, wisdom, experience, and efficiency. And at the present
moment, when the States have grown to twenty-four, it is found
CH. X.]
THE SENATE.
536
that fortT-«i(rtit is a number quite amall enough to perform th«
great national functions confided to it, and to embody the requi-
site skill and ability to meet tho increancd cxigcneirs and inulti-
plied dutie'« of the office.' Tborc is probably no tcginlativc body
on earth nlimso dutks iro more rariouit and intereetinfi and im*
portunt to tho public welfare, and none which calls for higher
tulcnta and more comprchcnaivo attainmonfat and more untiring
industry and integrity.
§ 708. In tlie convention tlicro was a considerable diversity at
opinion aa to the number of which the Senate should consiHt,
and the apportionment of tho number amon;; the States, When
the principle of an equality of repre«outution was decided, the
only <{tieetion Beems to luive been whether each State should hare
three or two meralKrs. Three waa rejected by n vote of nioo
States against one; and two inserted by a rote of nine States
against one.^ It doea not appear that any proposition was ever
entertained for a loss numlwr than two; and the silence of all
public disciisaion on this subject seema to indicate that the publio
opinion decidrdly adopted the lowest number under the confed-
eration to bo the proper number, if on equality of representation
wax to Ix admitted into thn Senate. Whatever may )>e the future
increase of Htates in the Union, it is scarcely probable that the
numlwr will ever exceed that which will fit the Senate for the
best performance erf all its exalted functions. The Rritish Uooae
of Lorda at this moment prc^ubly exceeds any number which will
ever belong to the American Senate; aud yet, notwithstanding
the exaggerated dGclamation uf a few ardent minds, the sober
sense of tho nation has never felt that its number was cither a
burden or nn infinnity inherent in the Con8titutinn.'
5 709. Fourthly, the term of service of the senators. It is for
atx years, although, as will he presently seen, another element
in the composition of that body is, that one-tUrd of it is changed
every two yearo.
■ lir. Taeka, tht l«anMd Connnentator oa BUckatoiw, in ISU, Mid : " Tht
wbala uiunbtr at moaton ia *! (raont linlud to Uurtj-tva It u not |irob*bl« llwt
)l wtll ivct •xM»il dfly,' 1 TvA. Black. Oanm. Ays'. SU. How Mnngly hM ow
IMiinail i^tuwUi >lM«Jy ou1atKiip«d ill bunUM cdcnUtkni I
*.lc>nn»IafCoDnatlM. SUJulf, 18». 8m abo Id. ISO, 1«1. I7S. 17S, ISO, 1U.
* 8m th« Rwka q«ated in 1 Tnefcw'* BiMk. Ommm. App. tS3 ; 1 WUmd'i Uw
LteU ISO. In IMS the Honw at Lords «ma Mid to ba 0Mn|MMd of kbmt ISO ; tl oaa
pnlMUy uMNla SM.
526
COKSTITCTIOK OP THE UNITED STATIS. [bOOE m.
What vould be the moat proper period of office for senators
vas an iuquiry admitting of a stitl wider range of argiuncnt and
opiniuu Uiaii what vuiild be the niuttt proper fur thv nienilitrni of
the liuusu of Bvprcsentiitivfti. The subject vom cuofcfiiwdly one
full uf intricacy and duubt upon which the wisest statutmeo
might well entertain very dilTereut views, and tlie best patrioto
might well ask for more information, without in the sliglitest
d4^px>e bringing into tjuestiun tlieir intimity, their love of lib-
eriy, or their devotion to a rc-publicao gorenmteut If, in tlie
present day, the pro$^s8 of public opinion and the lights of
experience furnish iw with materials for a decided judgment, we
ought to remember that the question was then free to debate, and
the fit conclusion was not easily to be seen or justly to be meas-
nred. The problem to be aulved by the great men of that day
was, what organization of the legislative power in a republican
government is best adapted to give permanency to the Uoiuu and
security to public liberty. lu the convention, a greut diversity
of judgment was apparent among ttiOHC whose purity and patri-
otism were above all Huspiciun, uud whose talout« and public acr*
vices WL-re equally uaqiiestioniible. Various propositiuns were
entertained; that the period of service of senators should be dur-
ing good behavior, for nine years, for seven years, for sis years,
for five years, for (our years, for three years.' All these propo-
sitions successively failed, exeopi that for seven years, which
was eventually abandoned for six years, with the additional liui*
itation that ouc-Uiird should go out bicanially.'(a}
1 'jmm. of Convcfttion. 119, 130^ 147, 148 i T*tM'« MinvlM, 4 UUofi D«tata^
TO. II, 108, IH 105, loa.
* Joutn. of Connntiim, 07. 7S. 118. 130. Ill, HS, 148, M7, S17, «S8, «», 878 1
Y»tM* Miautoi, 4 Elliot'* Debato^ 70, 71, tOS, 104, lOfi. 104. HomtMqMMi mom
to hire been >l«cli!*illf gf ojilnlaD thit • Mimu onj^ to b« chowB fnr lite, a mu the
rntUon U Bomr, M i4|xiit^ tiuJ eien at Athena. Hoateaqttinii'i Spiiil uf Iauti, R. 5,
cli. 7. It lit wvJl known lliil lliii uru Gtn. HuaUtoo'* ojdaion : cr laUm hii [n«p»-
ritioD wsi, tliui lbs H-iiBton ibonld b« <hoMii to Mm dnHdg good behaTior. Jonm.
of ConrtnlioD. f^ 130 ; Kotth AnMfliMi Rariav, Oct 1827, MC. It appcatm lo hat*
bean OM of iit. J*j. Sttih AoktriMn Bvriov, Oct. 1887. p. Vt. Uf. HadlMin'i
origiiMl oplnico Mrnu to bare bef* la faavs ■ Snialv eboKii lor a loogn' Ismi Uibb ibi
llooN of Koprmralatii-M. Vortb Aniericu Itevtev. Od. 1837. f. S6S. But in Iba
caiiTattioa, it U huI that be wu CiTtnbl/ inclined to Ur. Haniltott'a phw. 1 Pit-
fa) For Ramfltoa'a vicm bm^ farthur,
8 Hat^UoMt UToiIca, 3M ; S Hllal* Do-
taoci, 308-S05 . CnnU, OuL ot Coiut
U. 100 1 and for Madiaoii'i^ Lih otJUd-
lUB \,j Hire*, II. tsr.
THE SEBATC.
527
^
§ 710. No inconsi<)e»bl« tumj of objections wu brought to
l>CAr against thin prolonged t«rm of serricfi of the gpiiatora ))C*
yond that fixed for the tuembere of the Hoobo of Representatii'CS,
in tlte convention and U^forc thp people, whon the Const!-
lion wan njidcr thoir udvisfrnt-nt' Perhapfl aotno of tho»e ob-
jections still linger in tbo minds of many who entertain a general
jealousy of the powers of the Union ; und who easily persuade
thomselvos, on that account, that power should frequently change
hands in order to prcTcnt corruption and tyranny. The perpe-
tuity of a body, it has be«n said, is favorable to every stride it
may be disiMsed to make towards extending its own power and
influence in the government. Such a tendency is to be discor*
ered in all bodies, however constituted, and to which no efTccl-
ual check can )>e opposed but fre^iuent dissolutions and elections.'
The truth of this remark may be admitted ; but there are many
circumstaniM^ which may justly vary its force and application.
While, on the one hand, perpetuity in a body may be objectiona-
ble, on the other hand, contlnoal fluctuations may be no less so,
with reference to its duties and functions, its powers and its efli-
ciency. There are dangers arising from too great frequency in
elections, as well as from too small. The ()ath of true wisdom
is probably best attained by a moderation which avoids either
•ztrrmo. It may be said of too much jealousy and of too much
Wnfldencp, that, when eitlier is too freely admitted into public
councils, it betrays tike treason.
§ 711, It Beems paradoxicjil to assiert, as has I>e*n already in-
timated, but it 18 theoretically as well as prat-tieally true, that
a deep-felt responsibility is incompatible with groat frequency of
elections.' Men can fool tittle interest in power wliii-h slips
away almost as soon as it is grasped ; and in measures which
they can scarcely do more than begin, without hewing to perfect
Ida'i HnL SSV, iw(& Ta a qnwtian of m lancb diSnltr ud •Itliow; m tK« do*
TcniMtJon «f k ffttnmmt. It la not *t all mufntHtig that Ncb opiokau AooM Imtc
fatn Iwld bj thtm. iu»d maaf otbtn of iIn tmrait nd wot «ttbgbt*»nl patriota.
T%tf irialud iluntbilitj- sad wccwi lo ■ Npabllcui ^TaniMwt, aad mra, lbtnfn%
iM]gnit to aeca'n it agilut the imbTCllilf molting finni what the^ilMiDcd too hwqntirt
ebangta in the ■iltnlntrtrntkni of ita powm. To bold mch ofqnioiu waa not IhM
daomed a juat raatttr of repToaGb, thoufli fran llw fCMtlcal oparatiaiia «l tlia Cooirti-
tqtiioa thny mnj Dow be daouivd luiMiUid.
r* 2 Amnloaa Uuamm, HJ. * 1 Ttiekat's Black. Qmm. App. IM.
I* 8n aaU, 1 989, Ao. OS tlw *UM polBk
528
COXSTITUTION OP THE CNTTBD &TATB9. [BOOK lit.
Few measures have an immediate and senatble operation ex&etlj^^
ftccording to their wiBdom or policy. For the niotit part,
arc dc^tcndent ujwn otlier laenwireB, or upon time, and gradual
intermixtures with tlie Ijiisiness of life aiid the geoeral institu-
tions of society. ' The first superficial view may shock popular
prejudices or errors, while the ultimate results may l>e as admi-
^blo and excellent as they are profound and distant Who can
take much interest in wearing a single thread into a measure
which becomes an ovonesoent quantity in the main fabric, whose
texture requires constant skill and many adaptations from the
Bomo baud, before it^ perfection can bo secured, or even be
prophesied ?
§ 712. The objections to the senatorial term of oHico oil ro*;
solve tlicmsulvi-s into a siiigio ar^imtiit, bovrevcr varied la its'
forms or illustrations. That argument is, ttuit political power
is liable to be ubusud, and that the great security for public lib-
erty coujtists iu bringing home responsibility and dependence in
those who are intrusted with oRioo; and these are best attained
by short periods of office, and frequent expressions of public opin-
ion in the choice of officers. If the argument is admitted in its
most ample scope, it still leaves the question open to much dia*
cussioR, what is the proper period of ofhoe, and how frequent tlie
elections sliould be. This question must, in its oaturo, be com-
plicated, and may admit, if it does not absolutely require, differ^
ent answers, as applicable to different functionaries. Witboufe
wandering into ingenious specniations upon the topic in its most
general form, our object will be to present the reasons which
have been, or may be, relied on, to eBtal>lish the sound policy and
wisdom of tlie duration of office of tlic senatora as fixed by the
Constitution. In so doing, it will become necessary to glance at
some suggestions which have already occurred in considering
the organization of tlw other branch of the legislature. It may
be proper, however, to premise that the whole rt4isoniug applies
to a moderate duration only in office; and that it ssMinics, us its
basis, the absolute neocesity of short limitations of office, as con*
stituting imltsjx-nsablc checks to power in nil republican govern*
raents. It would almost be useless to descant upon such a baaia,
because it U universally admitted in llic tJnilr'd States as a ftm-
damental principle of all their constitutions of govenuncot.
> Tho PeJanUit, Ko. dX
CH. X]
TBR SENATE.
629
^
^
^
N
§ 713. Iq the first place, tfa«n, all the reasons which ai>p\y to
tlie duretion of th« legislative office generally, founded upon the
advantagf^H of Tarious knowledge and experience in the princi*
pies and duties of legislation, may be urged with increased force
in regard to tJie Senate. A good goTernment implieti two things:
lirst, fidelity to the object of govenuncnt, which is the bappineM
of the people ; secondly, a knowledge uf the means hy which that
(^jeot is to be attained. Some governments are deficient in both
these qualities; most ara deficient in the brat Some of our
wisMt stikt'^smen liavu not scrupled to assertv that in the Ameri-
can fruvcruau-nta t^io little Bttentioa has been paid to the latter.'
It is utterly impossible for any nsaombly of men, called for tJie
most part (ram tlie pursuits uf private life, continued in appoiut-
mont for a abort (ime, aud led by no permanent motiro to dwote
the intorvaU of public occupation to the study uf the mUurc and
opcnitiODB of government, to esvape from the <^mniissioii of many
errors in the diachaj^ of their Icf^slutive fuucliuus.* In pro-
portion to t)ie extent and variety of these functions, the national
interests which Uicy involve, and the nutionsil dudes which they
imply, ought to rise the inlellcvtuu! qualifications and solid at-
tainments of tlie mcmbom. Even in our domestic cuucwms,
what are our vuluminuus and dver-ehungiug codvs, hut monu-
ments uf deficient wisdom, liasty resolves, and still more hasty
repeals 1' What arc they, but admonitions to the people of the
dangers of rash and premature legislation,* of ignorance that
knows not its own mistakes, or of orcrvccning conlidonoo vhich
heeds nut its own foHicsT
% 714. A well-constituted Senate, then, whicli should inter-
poee some restraints upon the sudden imptilsea of a more numer-
ous branch, would, on this account, be of great value.* But its
value would be incalculably increased by making its term of
otTiee such that, with moderate industry, talents, and devotion to
tlie public servii!e, its meailiers could scarcely fail of having the
reasonable information which would guard them against gross
errors, and the reasonable firmneHs which would enable tliem to
> Tlw FnltnlM. Ho. 63 ; 3 Wiln.-, U« t>ct. H«, UT. HS.
* Tbe FedniliM. Ho. SS-. 1 EUiot'i Dcbtta. AS. M; 14. »» to ttt) S EUiot't
DcbaUa. M). &I 1 3 WiUcoi'i L«w Lcct ISl i t Kmi'i Omdh. LkL 11, p. 212.
■ n* FodenlUl. He- «i.
* Thm PolftitiM. No. <3 1 1 EUiof) IMmIm, IW, MS^ HI. S« io 3« ; S WUmii'i
U» Ur*. 1(6, H7. KB, 151 ; 1 Kwt'i Cooua. »&
▼OL. I. — St
b&O
CONSnTDTlON OP THE OmTBD
[book m.
resist visionary epeculatioiui and popular excitements. If public
men know thut the}- inity Bafvly wait for the graduul oclion of a
Eutind public opinion to di-«iilu upon tlio merit of tlieir a«tioiu
and meastirus before they can be alnick dourn, they will bo mnrc
ready to a»iumo roaponaibility, nnd pretermit present |iopuIarity
for (utnrc Kotid reputation.' If they arc designed, by the very
etructuro of the government, to secure the States aguiost en-
croachments njKin their rights and libertiea, this very iicrina-
ncnoo of office adds new means to effectuate the object, l^opulsr
opinion may, perhapH, in its occasional extravagant sailie^, at
the instance of a fawning demagogue or a favoritn chief, incline
to overleap the constitutional barriers, in order to aid their ad-
vancement or gratify their ambition. Dut the solid judgment of
a senate may stay the evil, if its own duration of power exci'cda
that of the other brancbes of the govenuncnt, or if it combines
the joint durability of butb. In point uf fact tlio Senate haa this
desirable limit. It combines tlio gx-Tiod of office of the exeeu-
live -Kith that of the inerabcra of the Ifouaut while at the
time, from its own biennial changes (aa wc shall prcaently see),]
it is silently subjected to tJie deliberate voice of the States.
§ 715. In the next place, mutability in the public councils
arising from a rapid succession uf ni-w members is found by ex-
perience to work, even m domestic concerns, serious misohiefa.
It la a known (act in the history of the States that every new
election changes nearly or quite one half of its repr^-aentativcs,'!
and in the national government changes less fmquent or leas^
numerous can scarcely be expected. From this chanffe of men
there must unavoidably arise a change of opinions, and with this
diangc of opinions a correspondent diangc of meaaurea. Now
experience demonstrates tliat a continual clwnge even of good
measures is inconsistent with every rule of prudence and everjr
proApect of flucei-ss^* In nil human affairs time is required to
consolidate the elements of the best concerted measures and lo
adjust the little interferences which arc incident to all legisla-
tion. Perpetual changes in public institutions not only ■ u
intolerable coutroveniies and sacrifices of private inlui' - :
check the growth of tliat steady indnstry and cntor|>rise which
by wise foreoast lay up the means of future prosperity. Besides,
> Sm I KUlot'i IMMM, MS, »!, ia» to X78 ; S eiljot'* DalMUa. 4S t« Bl.
* The F«dtntut, >'o. «3. * Id. No. 03 ; 1 Kenf> OsHni. S12, SIS.
CH. X.]
TBB SSNATR.
681
th« iDHtability of public oouncils gives an unreasonnblc advautage
to th« sagdtiiouft, tbe cunning, nnd the moneyed capilalinU.
Every new regulation concerning eommeroo, or revenup, or nian-
iifncttircis or agriciiUnre, or in any manner affecting the relative
value of the different syMJcies of proprrty, prpaents a new harvest
to those who watch the change and can trace the caniiequenoes,
— a harveft which in tora fnno the hand of tbe honest laborer or
the confiding artisan to enrich thoee who coolly look on to reap
profit where they hare sown nothing.* In short, sueb a state of
thinga generates the worst pasaionit of selfiHlincHa and the worst
spirit of gaming. However parudoxioal it muy ftccni, it is never
thelms true, that in affairs of goremmont the best measurea to
bu safe must lic elowly introduced ; and the wisest couneils are
tho«e vrbioh proeuud by steps and reach circuitously their eonelu-
flioiL It is then important in this gcnemi view that all the piiblie
fnnctionarieft should not terminate their offices at the aomc pe-
riod. "Vhe gradual infusion of new elements which may mingle
with the old secures a gradual renovation and a permanent union
of the whole.
§ Tift. Itut the III effects of a mutable govnmment are still
more strongly felt in the intercourse with foreign nations. It
forfeits tbe respect and oonfidenee of foreign nations and all the
advantages connected with national character.* It not only lays
its ineasnres open to the silent operations of foreign intrigue and
management, but it snbjccta its whole policy to be counteracted by
the wiser and more Sta1)le policy of its foreiprn rivals and adver-
sarien. One nation is to another what one individual is to an-
other, with this melancholy distinction, perhaps, that nations
with fewer benevolent emotions than individuals are under fewer
restraints also from taking undue adviinta^^-s of the indi»crctions
of each other.' If a nation is perpetually fluctuating in ita mens-
ucrs as to the protection of airrtciilture, cuiiimerec, and maniifact-
uri's, It exposes all its infinnitiee of purpose to foreign nations,
and tbo latter with a systematical s^aeity will sap all the
foundations of its pro8|)ority. From this e^iuse under the confed-
eration America suffered tho moat serious evila. "She finds,"
> The F«I«nIiit, Ko. Ct.
■ Tho PtcUnUUt. So. «3 ; 1 EUiot'* Dtb>tM. MS, SOP.
■ Tho Pedonlbt, Hol 62 ; 1 EUiot'a DtblI*^ US, STO to S7S ; 1 Kcnf • Conun.
212,81).
5&3
COHBnTOnON OP THE UNITED STATES. [BOOK til.
said the Fedeniliitt,> with uduhuhI boldne» and (rocdom, "that
ahe is held in no respect by her friends, that alio U the derision
of her euL-miv8, anil Ilm( «\w in a prey to every imtioii which hs
an iuteri-jtt in spcculiitiitg ou her Huctuatisg councils and euthar-
rasaod affairs."
§ 717. Further, foreign gov^mmenta can never Bafcty enter
into any permanent arrangemonta with one whcoe councils and
go^'eniinent are perpetually fluctuating. It vaa not unreasonsil
hte, thei-efore, for them (o object to the continental CongrcAa that
they could not guarantee the fulfilment of any treaty, and there-
fore it was uaeless to negotiate any. To secure the respect of
foreign nations there must lie power to fulfil engageniunttt, confi-
dence to sustain them, and durability to insure their cxvcutioa
on the part of the government Xutimial charactvr in cases of
this sort is inestimable. It is not siifliciont that tticrc should be
a satisc of jnstioe and dispositiou to act riglit, but there must tia
an enlightened pcmiancticy in the {>uliey of tJie government.*
Oaprice is just as misehieTOus as folly, and corruption scarcely
worse than perpetual indecision and fluctuation. I» this ricw,
independent of its legi.stative functions, tlic participatiun of tlie
Senate in the functions of tbo executive iu appointing arabaasa-
dor« Rud ill forming treaties with foreiffn nations gives additional
weight to the reasoning in favor of its pruluugod term uf service.
A mor« full survey of its other functions will nutice that reason*
ing absolutely irresistible, if the obj«ret is that they should btt
performed with independence, with jtidgmentf and with scrupn*
loos integrity and di]?nity.
g TIA. In answer to all reasoning of this sort, it has been
strenuously urged that a senate, constituted, not immediately
by the people, for six years, may ^rradually acquire a dangerous
pre-eminence in the goveniment, and ev«ntnully transform itself
into an nnstocrnry.' Certainly such a case is poMiblo, but it is
scarcely within the range of prubnbility, while (he people or the
^vernmcnt are worthy of protection or eonndeuoc. Liberty may
be endangerod by the abuses of liberty as well as by the aluism
of power. Tliire ore quite as numerous instani'^s of tlie former
as of the latter.* Vet who would reason that there should b« do
I The Fedemlbl. Sa 63.
* 8t« 1 EnkF|-< Dtimb^ ie». SrS. S7S. Vi. ■ See S Amr. HaMaM, MT.
* The r«Ur>Urt. No. U; I EJliol'i DehriM, Sfft, Ki.
ca. X.]
THK 8KSATE.
SS8
I
I
liberty lecaime it had bepn, or it might be, abuMd? Tyranny
itAolf would not dtsire a more cogont argument tlian that iho
danf^r of abuse wa» a f^round fur the denial of a right
§ 710. But th« irrcKJHtiblc reply to aU »ueh reattoning is, that
befun- Biioh a revulutiou chu bv i-ETuc-lcd the Senatt^ must, in Ihi^
(irat place, corrupt it»olf ; it mnet next corrupt th« Htate legia-
laturoa; it mint then corrupt the Uousg of Repmtentativi^s; and,
lastly, it must corrupt the people at large, Uuless all tliese
things are done and oontiiiiicd, the usurpation of the Senate
would l)e as vain as it wmild betroiuient The periodical change
of its meinliers would otlierwise rc^ncrate tbc whole body. And
if such imiveiBal corruption should prevail, it is quite idle to talk
of usurpation and aristocracy ; for the govumuK'nt would then be
exactly what the people wotild chooae it to be, it would repre-
sent exactly what they would deem fit. It would perpetuate
power in lite very form which thoy would advise. No form of
government ever pro]>oeed to contrive a method by which the will
of the people should be at onoe represented and defeated; by
which It should choose to be enslaved, and at the same time by
which it should be protected in its freedom. I^rivate and public
Tirtue is the foundation of repnblics; and it is folly, if it is not
madness, to expect that rnlers will not buy what the people are
eager to sctl. The people may guai'd tht>miM>IveB against the
opprvsttions of their governors ; but who sliall guard them against
their own oppression of themselves !
§ 730. Rut experience is, after all, the best test upon all sub-
ject« of this sort. Time^ which di&Holves tlie frail fabrics of
men's opinions, serves but to confirm the judgments of nature.
What are the letwons which the history of our own and other in-
stitutions teachea us ? In f! rcat Britain the tlous^ u( L>ords is he-
reditary ; and yet it has never hitherto been able sueocssfully lo
assail tlie public liberties, and it has not iinfr^iiueutly presvrred
or enforced them. The Rouse of Cominuns is now ehoncn for
■oven years. Is it now less an organ of the fiopiilar opinion and
leita jealoiui of the public rights than it was during annual or
triennial Piirliuments ? In Virjciuia, the House of Delegates, be-
fore the ttcvohilion, was chosvn for seven years, and in some of
the other colonies for three years.' Were they then subservient
to the crown or faithless to the people ? In the present constitu-
> 1 EUiot'* MMt% S7S.
534
CONSTTTDTIOK OP TQE IWIIKD STATES. [dCKIS OT.
tions of the States of Amvricu tborc Is a great diversity in the
terms of oRke as well a» the qualifications of the State senates.
In Nevr York, Virginia, Pc'iiititylvaiiia, and Ki-iilucky, the svnate
ctioiien for four years ;> in Oulawaro, Mituissippi, and AU-
la, for three yeara; in South CarolJua, Ttiuueaae^ Oliio, Hii
souri, and Luuisiaiiii, biennially; in Marj'laiid, for Gvo yeare;
in the other States, annually.* (a) Thcsu divonitlcs ore OS
striking in the eonfltitutioii^ which were framed a« long ago
the times of the Rerolution, mt in those which are the growtli,
as it wore, of yesterday. No one with any show of reason or
fact can pretend that the liberties of the people have not boon
quite as safe, and the legislation quite as enlightened and pure,
in those States where Uie senate is choaon for a long as for a
short perio<l.
§ 721. If there were anything in the nature of the objections
which have been under consideration, or in general theory, to ,
warrant any conchiiiion, it would be, that the circumstanees of
the States being nearly equal, and the ohjeots of legislation the
same, the snm(! duration of office ougtit to be apjdied t^t all. Yet.
this diversity has existed without any nssignablo inconvenience'
in its practical results. It is manifest, then, that the difTerent
manners, habits, institutions, and other clrcnmstances of a soci-
ety may admit, if they do not require, many dtfTereut niudiGca-
tions of its legislative deparlincnt, without danger to UlxTty on i
the one hand or groRs imbrvJIity on the other. TlicrC are many
gnards and checks whieh are silently in operation to fortify the
benelits or to retard the miseliiefs of an inii>crfect systum. In
the choice of organisations, it may be affinned that that is on the
whole l»est which secures in practice the most zeal, cx|K>rionc*,
skill, and fidelity in the discharge of the legislative fuuetioiis.
The example of Man'land is, perhaps, mora striking and in-
structive than any one which has been brought under review ; for
it is more at variance with alt tlio objections raided against the
national Senate. In Maryland the senate is not only chosen for
five years, bot it possesses the exclusive right to Gil all vacancies
t Tin Ptdmliit, No. 39.
1 Dr. licbtr*! Encjiel. Amctkaiia, art. ConM^Hau t/ lit Slata: Tbc Fttknlbt,
So. ».
(a) Uaay liktagtt han bMn msdn in
ttu> nguil »by» Ihtn ConoMntiriM ivcn
written, but Ihoy hm gftrntMy tetm in
tb« dincUoQ of •hottciung the tena.
TBE SENATE.
635
I
I
•
ia its own bod;-, aod has do rotation during the term.' What a
fniitfal aourc« might not thia be of theoretical objections and
colorable alarms (or the safety of the public libortie»! Yet
Marj'land continues to enjoy all the blessings of good govern*
ntent and ralionul freedom without molestation and without
dread. If examples are sought from antiquity, the illustration
arc not less striking. In Spsrta, the ephori, the annual repi-e-
svnt«tivuk of the poupio, were found uu overmatch for a seuatc
fur lifv; tlio former continually guining authority, and finally
drawing all power into thi-ir own hands. The tribunes of Bomo,
nTho wore tho a-prciictitutives of the people, prerujlod, in almost
every conl«.'«t, with the senate for life; and in the cud gained a
complete triumph owr it, notwithstauding unanimity amont; the
tribunes wim indispcuMubk-. Thia fact pruveit the irivsistible
force puMcwed hy that brunch of the govornmt--ut which repre-
sents the popular will'
§ 722. Coiiflidering, then, the various functions of the Senate^
the (|unlificnlionfl of skill, experience, and information which ftre
requirod to discharge iiwni, and the importance of interpoaing,
not a nominal but a real cliucic, in ordvr to guard the States from
usurpations upon their authority, and the people from becoming
the victiuui of violent iHiroxysuis in legislation; the term of six
yeura would suem to hit the just medium bctwocu a duration of
of&ee which would too much rcsutt, und a like duration which
would tuo much invite, tJiuse changes of policy, foreign uud do-
mestic, whieli the best interests of the cuuutry may require to bo
dcliborstely weighed and gradually inlroduocd. If the State
governments are found tranquil aud prottpcroiis and safe with a
Miiato of two, three, four, and live years' duration, it would
seem impoMsiblo for the Union to bo in danger from a terra of
Mrrlce of six years."
j 723. But, as if to make assurance doubly sure, and take a
bond of fate in order to quiet the lost lingering scruples of jeal-
ousy, the succeeding clause of tho Constitution has interposed
an int«rmediiite change in the elements of the body, which would
aeem U) niakt^ it al»oIulely a)>oTe exception, if reason, and not
fear, ia to prevail ; aud if government is to bo a reality, and not
a vision.
■ Tbe FtxImlHt, H* «9. * liL Ko. 63 ; H. Ho. S4.
■ 1 K]Uot'iDeli*te*,S«taMi Id. 01} 1 Kent'* Coaun. Lect. U, pp. SIS; Ul.
688
CONHTITDTIOK OF THE UKITED STATES. [BOOK HI.
} 724. It declare " Immediately oftor they [the senators] shall
he fimembled, in con))«<|u«nce of the fint elccliou, they shall bu
di^-ided, aa equally aa may be, into three classes. Tlie MMts of
the sunatora of the first cliuts shull bo vscat«d at the expiration
of the second year; of the secoud class, at the cx|)iratioo of the
fourth ycJir; aud of the third class, at the expiration of the sixth
year, so that one-third may be chosen every 8«c-ond year." A
proposition wa« made in the convention that the senators shonld
be chosen for nine years, one third to go out biennially, and was
lost, three Stated voting in the aftirmative and eight in the neg-
ative; and then the prcaent limitation was adopted by a vote c^
seven Statea against four. ' Here, then, is a clause which, with-
out iropairiag the efficiency of the Senate for the discharge of its
high function!), gradually changes its members and introduces a
biennial appeal to the States which must forever prohibit anr
permanent combination fur sinister purposes. No penioa would
probably propose a Icsa duration of office for the Senate than
double the period of tbc House. In effect, this provision changes
Ihc composition oi two-thirdit of that body within that [i-riucL'
§ 725. And here, again, it is proper to remark that experi-
ence has established the fact beyond all controversy, that the
term of the ."senate in not too long either for ila own Bcourity or
that of the States. 11i« reasoning of tliose exalted minds which
framed the Constitution has been fully realited in practice.
While the House of ReprenvntativGa has gone on incnriwing and
deepening its influence with thu people with an irresistible power,
the Senate has at all times felt tho impulses of tlie popular will,
and has never been fuimd to resist any solid improvements. I*et
it be added that it has given a dimity, u solidity, and an «i-
lightencd spirit to the operations of the govcnunent whidi have
DuintAined respect abroad and confidence at home.
S 726. At the (irgt aeasion of Congress under the Constitution
the division of the senators into three classes was made in the
following manner. The senators present were divided into three
> Joun. or CsnveiiUm, Stilt Juat, 1757. f. 1*9 ; Tatot'* Mianie^ t EIU»t*i
tkiMm, t03 to 100,
* I PJIiot'i DcbalM, S4 to «a i I<L tl. fi; I Kant'i Qmaa. U«l. 11, pp, i\3, 214.
A i<i**r la wcoH tlw *nwt«n mm )iropo«ed u an uwaidneiit tn ■onv ut tlw 8t>t> md.
natiow; but U does not w«in lo bara obtoiorf g>n«»l U-nr. 1 ElUora IVbusi^ 2S7,
SSS to 3dl. SU U 973 i S Kllioi'* DeUM. SC4. lUmj potwt immntt nl^ht be aqcxi
■CunM U.
THE SSNjTB.
581
^
^
^
classM bj Diunc, tlie first conaUtinfir of six persons, the second
of iH'vi-n, and the third of six. Tlirt-c pajtcrs of an equal size,
numbered one, two, and three, were by the secretary rolled up
and put into n box, and drawn by « coinn]itt«« of three persons
chosen for the purpono in bohalf of the renpective cIas8«8 in trhieli
Aeh of them wa« placed, and the clasHca were to vncate their
MatH in tlif Sonata according to tho order of the numbers dniwii
for th<^m, licj^imiing with number one. It was also provided that
when aenaton) ahould take their nests from States which had not
then appointed oenntorv, they should he placed by lot in the fore-
going clasaeH, but in such a manner aa ilhould keep the clasges as
nearly equal aa potwiible.' In arranging the original claDses oare
wail taken that Iwth Honators fmm tho same Slate should not l»e
in the same class, so that there neror should be a vacancy at the
some tiuMJ of the seats of both senators.
§ T27. As vaeaneios might occur in the Senate during the
recess of the State legislature, it became indispensable to pro-
Tide for that exigency. Accordingly, the same clause proeeedg
to declare: "And if vacancies happvn by resignation or other-
wise during the recess of the legislature of any 8tate, the execu-
tive thereof may make temporary apjMintroents until the next
meeting of the legislature, which shall then fill such x-aeanciea."
U does nut appear tliat any strung objection was urged in the
convention agaiust this jiropusition, although it was not adapted
without sumo opposition.' There seem to havo \ieen three
courses presented for the consideration uf the convention, either
to leave the vacancies unfillod until the meeting of the State
legislature, or to atluw the State legislatures to provide at their
pleasure prospectively for the occurrence, or to confide a tempo-
rary appointment ti> some select ?itato functionary or body. Hie
latter was deemed the most satiafactory and convenient course.
Confidence might justly i>e reposed in tlie Statn cxeeutive, ns
represenliug at oik« the interests and wishi^ of the State, and
enjoying all the proper meaiui of knowledge and responsibility to
insure a judicious api>ointm«nt,'
1 Jooniah at th* Snul^ 15«h Hav. IT«9. pp. 3S, M («ltt. Ig»>.
* Joonwl «r CoDTMitkni, «lh Aag. S37, tU.
* !■ tha ana «f lir. [Anam, » naatoc ftvni Conotvtwirt. • qaestioa iKViUTed,
wbother tba BtM* •montire malil imake au ippouitmciil in tk nitM id tfce SUta kgu-
klKM ia — tJettalJMi el Um axpuUMD of Uis tern of oBkc of aa fttWwf aaaatoa. It
538
CONSTITCTION OP THB CNrXED STATES. [BOOK HI,
§ 728. Fifthly, th« qualiQcatious of scnatora. The Constitu-
tiou dcclarcB that "No person shall be a eeoator who shall Dot
hare attuiiiud tliu npj of tliirty yean, and be«n nine years a citi-
zoa of Ihu UniU.-d Staus, and who shall not, when elected, tie an
iuibabitttut of that 8tAt« for which he shall lie chosen. " As the
nature of tlie duties of a senator requires more ex|ierience, knonU
eigfi, and stability of character than thoao of a representative, the
quali ligation in ]>oint of ag;e is raised. A pi'ra<»n m%j be a rejire-
Bentative at twenty>live; but be cannot be a senator until thirty.
A similar qualification of age waa required of the members of
the Boman senata* It woul<l have been u somewhat singular'
anomaly in the history of free govcramcuU, to have fuuud per-
sons actually exercising the highest functions of gov^rumeut,
wh(^ iji some enlightened and pullshod CMmlries, would not be
deemed to haro arrived at an age auOicieutly mature to be enti-
tled to all the private and municipal privileges of nuinhood. In
Bouie ]>(.n-suuii were not deemed at full age until tweuty-fivo; and
that continues to bo the rule in Frmncc and Holland and otbef
civil-liiw (:uiiutncji; and in Prance, by the old law, in regard to
mairiuge, full i^ was not attained until thirty.' It haa »ia06
been varied, and the terra diminished.*
§ 729. The age of senatoni was fixed in the Constitulinn at
first by a vote of seven Slates against four, and finally by a
unanimous vote.* Perhaps no one, in our day, is disposed to
quoslioo tJie propriety of this limitation; and it is, therefore,
useless to discuss a point which U so purely sjK-calative. If
coiuiBols are to be wise, the ardor and impetuosity and conHdenoe
of youth must bo chastened by the sober lemionB of experience;
asd if knowledge and solid judgment and tried integrity ore to
be deemed indispensable qualifications fur senatorial service, it
wu dfddod by th* Scn>t4 timt h« could not make ludi an appmabaMK. Y%o Tactt
were; thai Mr. I^nmftn'a fna of wTria aa mmIot expirad on (h* UiM of Manb^,
18ES. Tbn pTMldont had eonrokod Ih* Stnalo W iinM mb tha fixinli at Hatch.
gqrrmoT of Coiiuocticut, In Hxt racaw of tha l«gl«la|iit« (whoau wtaaioa would bo in
Mnjr). on ihe ninth of tha toKwdtnf Tnhnitrj afipaintnl Mr. Iiutinaa h> ■enttor. lo
•it JB the Scnat* an«r Ibe tlilnl of Har-k. Tho Srnati\ bjr a tMb of twMtj-tlirre I
oighlMO, iaiAti thnt th« ■)>pniiitmeiit ooiild not be conatitutionaUy ■ado-iiiiiil i
the tsM»<7 liad •ebiall; oOMrrvd. Sm Gonloa'a Uignt of Uu l^m of tko Unib
Stetw. I«9r. Apptsdix, Ifol* I, B.
> 1 Rmfa Comm. L«:t. 11. p. Hi.
t 1 Btadt. Comu. 4«3, Mt. * Cods CirU. ait. S8S.
< Jouin. of Coav««tl«ti, US, \tt.
JHE 8ENATB.
689
would be rashness to affirm that thirty yeara is too Icmg a period
for a due maturity and probation.*
§ 730. The next qualificutiun la citizvnahip. The propriety of
8omt' limitation U|>ua adutisdiuns to oflivc, after naturalization,
cannot well \tc doubt«d. 11ic SeiuUe is to purticipittu larpfely in
trauMcliona with foreign governmenta; aud it aocma fndispcnaa-
blv (hat time »hoiild have elapsed aiiHIcieut to wuan a senator
from all prejiidir«a, reaenUuenta, and partialilica, iu ndatiun to
th« land of hia nativity, before he abould bo intru8t«d with auch
high and delicnt« functions.' Besides, it can acarccly be ]ir«-
aiimed that any foreigner can have acqained a thorough knowledge
of the institutions and interetita of a country until be haa been
permanently incorjioratod into ittt aociety, and haa a4'<iuired by
the habits and iutercourw of life tlie feelings and tJie duties of a
dtiflen. And if he has acquired the requisite knowledge, he
can scarcely feci that devoted attachment to them which coiuiti-
tat«B the great accurity for fidelity and promptitude in the dia-
charge (rf official duties. If eminent exceptions could l>e stated,
they would funiiHh no safe rule, and eliould rather loach us to
fear our being misled by brilliancy of talcnta, or disinterested
patriotism, into a conlidence which might betray or an acgui-
eacenoe which might weaken, that jealousy of foreign inlhienco
which is one of the main supports of republica. In the conven-
tion it was at first propas«.'d that the limitation should be four
years; and it was finally altered by a vote of six States against
four, one being divided, which was aftorwarda confirmed by a
TOte of eight .States to three.' This subject has been already
a<M»ewhat considered in another pinc«; and it may be concluded
by adopting the language of the Federalist on the same clause;
"The term of uiuo years appt^'urd to be a prudent mediocrity be-
tween a total exclusion of adopted citiiena, whose tu«r)t and
talents may eliiim a share in the public confidence, and an indis-
crimiuate and hasty admiissiuu of them, which might create a
channel for foreign Intlucuoo in the national councils."*
§ 781. The only other qualification ia, that the senator shall,
> IU«lr«B thoCeoUiraiiMi, 37 ; I Kent'* CoMin. Loct.ll, p. 214 ; 1 Tnek. Dlick.
CoinM. A pp. SIS.
* Tbr FoltnU*!. No. «.
* Jonrn. oTCoaTcntian. SIS, S38. 3S», 348. 349.
* Th* Fnknlut, Kol S2 1 Bawtt »■ lh»Cowtil»tio«, t7 1 1 K«at'» CMmh. Ltet. 11.
p. lilt.
640
oossTfrcmoN op the dhited states, [dooe m.
whea elected, be an inhabitant of tho State for which he is
chosen. ThtD scarcely require* noj comment; for tt is miint-
festly proper that a State should be rcpnmcuteil by one who, be-
oidi's iin intimate knowledge of all Its wants and wishes and local
pursuits, should hare a personal and iminediutc interest in all
measures touching its sovereignty, il« rif^hts, or its ioflucnca
The only surprise is, that proriaion wag not made for his ceas-
ID); to represent the State in tJie Senate as soon as he should
cease to be an inhabitants There does not teem to have beirn
any debate in the convention on the propriety of inserting the
clause ns it now standn. (a)
§ 782. In concluding this topic, it is proper to remark that
.1|B,mwlification whatsoever of propt^rty is established in rcgatd
't^J6BStorH, as none had been e8tabli9ht>d in regard to reprcscn*
tatives. Merit, therefore, and talent have the freest access 0|>ea«
to tiiem into every department of oflice under the national goT-j
enuneut. Under such circumatancea, if the choice of the peopla
is but directed by a snilable sobriety of judgment, the Senate
cannot fail of being distinguished for wisdom, for learning, for
exalted patriotism, for incorruptible integrity, and for inllexible
independence. '
§ 733. Tho next clause of the third section of tlie first article
respects the person who shall preaide in the Senato. It declares
that "the Vice-President of the United Ststes shall he president
of the Senate, but shall ha^'e no rote, unless they bo equally
divided;" and the succeeding clause, thnt "the Senate shall
choose their other officcra, and also a pn^sident pro tempore, in
the absenee of the Vice-President, or when he sliall exercise tb«
office of President of the United States."
§ 734. The original article, aa first reported, authorized the
Senate to choose its own president and other officers ; and this
was adopted in tlic convention.' But the same draft aulhortzrd
tlic president of tho Senate, in case of the removal, death, ri«-
ignation,*or disability of tho President^ to discharge his duties.
When at a late period of the convention it was deemed adrtaoble
■ Sm Tbe F«lM<abt. NV 97.
■ Jounul orCoiirMtlDii, jtp. S18, 340.
* Jovni*! of CoanntJoli, 326, 12Sl
r«) Thi8UtNauBat*diltaUuMqwlU)Mik>uaM-lnpoM4iHlNlUiM. Beeno
TBS SENATE.
Ml
I
tiiat there obould bo a Vice-Prcflidentt the propriety of retaining
him as presiding officer of the ^natc seems to have met with
general favor, eight Stat«ii voting in the affirmative and two only
ID the negative.'
§ 785. Some objections have been taken to the appointment
of the Vice-President to preside in the Senate. It was suggested
in the State conventions that the officer was not only uniicees-
sarj, but dangeruuB; that it is contmry to the usual counio of
jMirUamcntary proceedings to have a presiding officer who is not a
memlK-r; and that the State from which he comes may thus have
two votvs itiittcud of une.^ It huK aliw been coldly remarked by
» Icomed iwmmcntator that " the necessity of providing for the
esse of a vacancy lu the uiTicc of President doubtless gave rise to
tliu creation of that oDioer; nud for want of something else for
faiiu to do whilst thcro ift « President in office, be seema to have
been placed, with no very great propriety, in tho chair of the
aeualc" =
$ 786, The propriety of creating the office of Vioo-Prcsidcnt
will be rcserriMl for future conaiduration, when, in the progress
of liiese comuieutarics, the constitution of the oxecuti^-e depart-
mODt comes under review,' The reasons why he was authorited
to preside in tht- Senate belong appropriately to this place.
§ 737, Tbere is no novelty in the appointment of a pcnwn to
preside as spi-akcr who Is nut a constituent member of the body
over which be is to preside In the House of Lords, in England,
tbe prosiding officer is the lord chancclior or lord keeper of tho
great seal, or other person apjioiuU-d by the king's commission;
snd If none such be so appointed, then it ts said that t)ie Ixtrds
may elect. But it is by no means neceasnri- that the ppnton ap-
pointed by the kiug should be a peer of tlte realm or loi-d of Par-
■ Jonnul of CoaTentiea. Slit. S9S.
* « EIHm'i Dibtto, K9. Ml ; S EDiat'> DebdM, S7. St-
■ t ToBkcf'* Black. CDmni. Apfnt. SM ; Id. IM, 900. It b a woMwkt eotlMu tit.
cWMtMM la tlie hii(l«i]r «t CongnM^ %h»t lim vutiaw of Uto powrr of Um Vk>-PiMt-
dnil fn itclcBUag • kill for the arportioonMBt of i^rnwrntttivn in ITM bu bera wn-
tmnd, bccMM mkIi ■ UU MBmed (if any) alinait exclmlr*)? Hi br the Haiut of Btjw
wntdtlvM to imlif upon n Tuck. Blxk. C««nin. App. IW. SOO, SK) ; Mil thai a Hk*
Irill, t« itkicli lit* S-iMto tntsr]MM4 a iirooi^ opfMiikii, In 1U3. hi tmn dawMd by
•onis of III* Slairt m ■mptionalk, Ihiil lliia ra«ltUMe hu tvM thMgbt woitbr of
liigk|iml«F. ThrnlammeimgnininwiagnaihiiooMtnm^iim^atnimolmj
|]OW«r ^aiaat iU f-tatnl otitiljr o> foliirjr.
« Sm 3 AtMr. UoMiua, U7 ; Tlw Fedcnlkt, So, «L
&43
CONRTITDTION OP THE DKITED 8TATES. [itOOE IIL
liamenf Nor has this appoinlment hy the king ever bc«n
coi>i|>l»mei) nf u a grieTancc, nor has it operated with inconyen-
inicc or oppreHsIoii in practice. It is, on the contrary, deec
an important advantage both to the officer and to the hoii»e
peers, adding dignity and weight to the former, and securing
great Ipgal ability and talent in aid of the latter. This consid-
eration alone might hare had some inHuence in the conventioo.
The Vice-President being himself chosen by the States, might
well be deemed, in )><)iiit of age, chamctcT, and dignit)*, worthy J
to preside over the deliberations of the Senate, in which the Statca
were all asserabled and represeuti^. His impartiality in the dis-
charge of its dutiL-s might be fairly presumed; and the employ-
ment would not only bring his character in reviuw before tha^
public, but enable him to juatify the (niblic eoiilidenec, by per-
foniiin^: litH public functions with independence and finniieas :
sound dlHcretion. A citizen who was deemed worthy of being one
of the competitora for the Presidency, could scarcely fail of being
distinguished by private virtuos, by comprchcunivc acquirements,
and by eminent scrviees. In all (jue^lions before the Senate he
might Mifely be appealed to aa a fit arbiter upon an equal divi-
aiun, in which cose alone ho is intrusted with a vote.
§ I^S. But the strong motive for this apjxjintment n-as of,
another sort, founded upon Htate jejilousy and State equality la]
the Heuato. If the speaker of the Senate was to bo choacn
ita own members, the State upon whom the choice would fall
might poeaesft eitJier more or le«s than its due share of inBuenco.^
If the speaker were not allowed to votei, except where there
was on equal division, independent of his own vote, then tlie
State might lose its own voice;* if he were allowed to give his,
vote and also a casting vote, thpji the State might, in effect,
scss a double vote. Either alternative wo4ild of itself pnncnt a
predicament suSiciently embarrassing. On tlie other hand, if
no casting vote were allon'ed in any case, tlien the indecision and
inconvenieoee might be very prejudicial to the public interest
in case of an equality of votes.' It might give rise to dangerous^
feuds or intrigues, and create sectional and State agitutiuns.
The smaller States might well suppose lliut their intere«ts were
less secure and less guarded than they ought to l»e. Under sneh
1 I Blark. Comu. ISl ; 3 Blkck. Ceoin, 47 i 1 TiKk. Muk. Conun. App. Hi.
* Th« FwUntUit, Ko. SS. * Ibid.
CB.Z.]
THE SENATE.
648
I
I
»
fifOiimstanCiMt, thr Vice-Preaident voiiM tie^in to he thfi mo«t fit
nrbitcr to dfi-ide, bi-causo h« would Iw the rppresentative, not of
one State only, but of all, and rnunt be presumed to feel » lively
interoAt in promoting all measures for thu public good. Thii)
reasoning ap{R>an< to have bccu (iccisivo in the convention and
Mtisfactory to the people.' It wtablishes that there was a mani-
fest propriety in rnnkini; the nrraii^ment coiiduei>-e to the bar-
mony of the Htatcs and the dignity of Ihv general government.
And ag the Senate poflsesscs the power to make ralc« for its own
proceedings, there is little danger that there can c^'er ariBt- any
abniw of the preniding power. l*hc danger, if any, ia rather the
other way, that the presiding power will 1*0 either silently weak-
ened or openly surrendered, bo as to leave the office little more
than the barren honor of a place, witJiout influence and without
action.
§ 789. A (jncBtion involving the anthority of the Vice-Presi-
dent, as presiding officer in the Senate, has been ranch discussed
in consequence of a decision recently made by that officer.
Hiltcrto the power of preserving order during the deliberations
of the Senate, in all cosca where the niles of the innate did not
specially preserit>e another mode, had iM'en silently suppost^d to
belong to the Vice-President, as an incident of office It had
never been doubted, much leas denied, from the first organiKation
of tlio Senate; and its existence had l>een assumed as an inhe-
rent quality, constitutionally delegated, subject only to such
rules as the Henate should from time to time prescribe In the
winter session of 1826, the V ion- President decided, in effect,
that, as president of the Senate, he had no power of preserving
order, or of calling any raemlKT to order, for words spoken in
the coorse of debate^ upon hia own authority, but only so for as
it was given and regulated by the ndes of the Senate.' This was
a virtual surrender of the presiding power (if not universally, at
least in that case) into the hands of Ihe .Senate, and disarmed
the officer even of the power of aelf-prolection from insult or
abuse, unless the Senate should choose to make provision for
it. If, therefore, the Senate should decline to confer the power
of presen-ing order, the Vice-President might become a more
I S EUiot'i tycbBtn, SS9. MCi Ml i S BUiot'i Dftatei, S7. SS. SI. U.
* 1 Xmi-ricut Aimiul Brgiitcr, M, S7 | 8 Aaericaa AdiioiJ Bcgiiter, SB { 4 EUiot'i
D«l»t«^Sllu>31».
544
CONSTTTCmON OP TBB OTdTED STATES. [BOOK IJU
paj^cimt and cipher in that bodjr. If, indeed, the Vioe-Pre«idcnt
had not this power virtvu officii, there mut nothing to pr
the Senate from conliding it to anj othi;r officer chonen by itBclf. ,
Xaj, if the pover to preside had not this incident, it w«g diffi*
cult to perceive whnt other incident it had. The power to put
qtieations or to declare Totes might jtiat aa well, upon aimilar^
reasoning, he denied, unlesii it waa express); conferred. Hie'
power of the Senate to prescribe rules could not be deemed om-
nipotent It must be conatrued with reference \o, and in con-
nection with, the power to preside; and the latter, according to
the common-iM^nac of mankind and uf public bodies, waa alwaja
understood to include tlio power to keep order, upon the clear
fTfuund that tlie grant of a power includes the authority to make ;
it cfleetuul, and aUo of 8clf>preservaiiun.
§ 740. The subject at tliat time attracted a good deal of dia-
cussion, and was finally, bb a practical inquiry, put un end to in
1828, by u rule made by the Senate, Uiat "every quueliiHi of
order ahall be decided by the president without debate, subject
to appeal to the Senate. " ' Hot still the question, as one of con-
stitutional right and duty, liable to be regulated, but nut to bo
destroyed, by the Senate, deeerres and should receive the musti
profound investigation of every man solicitous for the permancait
dignity and independence of the V ice-Presidency. ^
^ S 741. 'Die propriety of intrusting the Senate with the choice
of its other ofhrers, and also of a president pro ttntptre in the
absence of tlie Vice-President, or when be exercises (lie office of
President, seema never to have been questioned, and indeed ta
so obvious that it is wholly unnecessary to vindicate it> Confi-
dence between the Senate and its officers, and the power to make!
a suitable choice and to secure a suitable responsibility for tb«'
faithful discharge of the duties of offiee, are so indis]>eusablu for
the public f!Ood that the provision will conunand universal assent
OS soon us it is mentioned. It bus grown into a general practice '
for the Vice-President to vacate the aenatorial cliaira short time
before the torniiuation of each session, in order to enable the
.Senate to choose a president pro temport^ who might already be
in office if the Vice-President in tlie recess should be called to
the chair of state. The practice is founded in wisdom and ftnimd
policy, a< it immediately prondes for an cxif^ency which may
1 9 Amtrkaa AnnoaJ tUtprtcr, »P. * S«c JoffcrMn* Uuul. ft 1», 17.
TBB SENAT&
&4&
N
well bo expected to occur ot any time, 00-1 prcventii the choice
from being influciiovd bjr tcmpurary cxcitciucnU or iDtrigues
arising fruin Ibo actual existcm-v of ft vncancy. As it ]» tisofiil
in peuoe tu provide for war, so it is likewise useful in tiinea of
profmmd tranquillity to provide for political agitations wkicli
may disturb lliu public borrauny.
$ 742. The next cl»u»c of the tJiird Bection of the first article
r«8pect« tJie subject of impeachment. It is aa follows: "Tlie
Senate shall have the eole power to try all impeachments. When
sitting for that pttrpose, they shall be on oath or affinnation.
When the Freiiiileut of the United States is tried the chief jus-
tice flhall preside. And no person shall be convicted without
the concurrence of two-thirds of the mcmlwrs present, ""
§ 748. Upon the subject of impeachments somcthiug has al-
ready been said, in treating of that branch of the Constitution
which delegates to the House of Representatives the sole power
of impeachment. Upon the propriety of delegating the power it
in unnecessary to cnlai^ But the next inquiry naturally pre-
sented ia, by what tribunal shall an im)>pachment he tried ? It
is obviously incorrect in theory, and against the general princi-
ples of justice, that the same tribunal shonid at once be the ac-
cusers and the judges; that they should first decide upon the
verity of the accusation and then try the offenders.' The first
object in the administration of justice is, or ought to l>e, to se-
cure an im)mr1iat trial. This is so fundamental a nile in all
rupublicsn governments that it can require little reasoning to
support it; and the only surprise is, that it could ever have been
overlooked.
§ 744. The practice of impeachments seems to have been ori-
ginally derived into the common law from the GemumSt who, in
their great councils, sometimes tried capital accusations relating
to the public. XiVtff apud toncitlum a^rutarf, qiioque el diterimen
eapitU intrndere.* When it was adopted in &)g)aod it received
material improvtmcnia. In Germany, and also in the Grecian
and Romau f-piiblieK, the pi-oplc wen- iit the same time the ac-
cusers iiml the jiidg^Ts; thus trumpltng down at tho outset the
best safeguards of tlie right« and lives of the citizens.^ But io
t Kawlt on CwuL eh. tt PP> 30». SIO:
* < Blud^ CeniM. 1«0. TkIi. d* Morih. Gtm. IS.
■ 4 nikck. dtam. »I -, 2 WiIno* Lo Leet. 1«, X«i. IM.
TOl. I. — Z&
546
CONSTITUTION OP TDE (TNITBD STATBa. [bOOE Itt.
England, the Hniue of Commons is invested with the sole pover
of impeachment, and the House of Lords vich the sole power of
trial. ThuH, a tribunal of high dignity, independence!, and in-
telligence, and not likely to ho unduly awaycd by the influence
nf popular opinion, ia entahlished to protect the accused and se-
cure to him a favorable hearing.' MontciU(iiieu has deemed such
a tribunal worthy of the bif^best praise.^ Macbiavcl haa ascribed
the ruin of f h« republic of Florence to the want of a mode of pro-
viding by imiieachrnvnt ngaioat those who ofTviidM) against the
8tat«. An AmL-ricati oommvntutor has huzard<.'d the extraordi-
nary remark that^ "If Uic wunt of a prupL-r tribunal fur the trial
of impcuchmmit^ can endanger the liberties of th« (Juitcd 8t
some future Muehiuvcl may jicriiaps trace their destniction to the
aamc sourco."* The model fron^which the national court of im-
I)cavhtneot« is borrowed is, dou)>tloss, that of Great Britain; ao4]
a similar eonittit-utional distribution of the power exists in
of the StalL- guviTnm*>nts.*
§ 745. Tlie great objects to be attained in the selection of a
tribunal for the trial of iniijeachments are impnrtiaiity, integrity,,
intelligence, and indejiondenco. If either of these ia wanting,
the trial must be radically imperfect. To insure impartiality,
tJie body must be in some degree removed from [>oi>iilar powe
and passions, from the influence of sectional prejudice, and from*
the more dangerous inHueiice of mere party spirit To secure
integrity, tbei'e must be a lofty sense of <luty and a deep res|i
sibility to future timca as well as to Qod. To secure intelUgenca,]
there must )>o age, expcrienon, and high intellectual powers
well as nttainmenta To secure independence, there must lie
numbers aa well as talents, and a confidence resulting at oncv
from permanency of place and dignity of station and enlighleniKl
patriotiam. Does the Senate combine in a suitable degree all
these qunlirtcationa ? Dues it combine them mure perfeelly than
any other tribunal which could be constituted ? What other txi-
bunal cmild be intrusted with the authority 7 These are questions
of the highest importance and of the most froqii'-nt occurrence,^
They arose in the convention, and underwent a full diBL-nasit
■ 4 Bhclc CoiDin. S6I ; but h« Palej't Hon! PUkaophf . B. «, di. S : I WOmii*!
Law I«ct. tM. 45L
* Manioq. Sfdrit of Lain, B. 11, cb. 8.
• 1 Tuclwr'i lilKk. CocDm. Aj^i. 3I&. • Tlio FnUnUil. Xo. U, «fl.
TOE BCKA-rc.
547
^
tliere. They v^re again deliberately debated in the State coo-
ventions; und thvj liavc bven at various tintca flinc« agitated by
juriHts and Htutc«mcn and jwlitical bodiea. Few parts of the
Coniititutiuii buve been assailed with ooore vigor, and few have
been di-fended witli more ability. A learned coiumentator, at- a
coneidiTiiblu distance of time after the ado{>tion uf the Constitu-
tion, did not seniple to declare that it wa« a must inurdiuat«
powLT, aud in some iuittaaces utterly inco«){Mit ible with the other
{mictions of tbe Senate;' and a similar opinioo has often been
propagated with an abundance of zeal.* Tlie joiinial of the con-
vention lieara testimony also to no inconsiderable diversity of
judgment on the subject in that body.
§ 14Ct. The subject is itself full uf intrinsic difficulty in a goT>
ernmeiit purely elective. The junsdiction is to bo exercised
over offences which are committed by public men in notation of
their public trust und duties. I'hosc duties are in many cases
political; aud, indeed, in other cases, to which the power of
impeachment will prob«b1y bo applied, tboy will respect fuoc*
tionariea of a high charuct«r, where the remedy would otherwise
be wholly iuudeijnute, and (he grievouci; be inca|>ablo of redress.
Strictly speaking, then, the power partakes of a (xilitical charac-
ter, 08 it reajx'cts injuries to the society in its political character;
and, on this uooount, it requires to be guarded in its e\t-rcise
against the spirit of faction, the iututersnce of jiarty, aud (he sud*
den movemonis of popular feeling. The prosecution will seldom
fail to agitate (he jmsiBions of the whole coimuuiiily, and to divide
tt into parties, more or less friendly or hostile to the accused.
Tlic prejis, with its unsjiaring vigilance, will arrange itself on
citlter side to coutrol and Intluenoc public opinion ; and there will
always be some danger that the decision will be regulated more
by the comjiarativo strength of parties than by Uie real proofs of
innocenoo or guilt.*
§ 747. On the other himd, tlio deiicacy and ntagnitudo of a
tntst which so deeply concerns the poIi(icaI existence and repu-
tation of every man engaged in the administration of public
affairs cannot be overlooked.* It ought not to be a power so
■ 1 TncluT'* BWk. Coook. An>. 300 1 Id. SU, SM, U7.
* S Amnr. MiiKum, blS ; I Amer. Uiwcain. 71 ; Tbn Frltnlut, Xok C5, M : 1 Tttck.
Bbak. Ciiciiii. Ji]ip. 337 : Jour. «f ConnaUoo, SufipbaMat, ff, 435, tXt.
• Tl>* FBl«nli.i, No. M. « Id. New U ; S WilMm't Uw Ud. IK.
&48
COSSTITtmON OP THE DXITED STATES. [BOOK m.
Operative ftnd tiiatant that it may intimidate a modest and con-^
aciontioiu Btstcuman or other functioanry from accepting offi«ej
nor so weak and torpid us to bo oapubli; of liillini^ offL-ndcra in(d'
a general security and indifTorcuuc. Tlic dilTictiltj' uf placing it
rightly ID a gorcnimcat resting entirely on the basii) of period-
ical elections will be tnoro strikingly perceived n-licu it is cou-
sEdcred that tho ambitious nnd th« cunning will often maki
strong iiccuMtions against public men tlic means of tlieir
elevation to oflicp, and thus give an impulse to the pover of im-
peachment by priHtccupyiiig the public opinion. The convention
appears to have bei>n very strongly impressed with the difliculty
of constituting a, suitable tribunal, and finally ctune to the reiiull
that the >'«nate was the most fit depositary of tJiis exalted trust.'
In so doing they had tlie example before them of several of the
best considered StAte constitutions; and the example, in somo;^
measure, of Crcat Britain. The laont strenuous o|>ponent can<
not, therefore, allege that it was a rash and novel experiment;
the most unequivocal friend must, at the same lime, admit that
it is not free from alt plauaiblo objections.'
§ 7-18. It will bo well, tJiorefore, to reviev the ground, and
ascertain how far the objections are well founded, and whether
any other scheme would have been more nnt>xce[>« ionnblo, Thaj
principal objections were as follows: 1. That the pruvittion ood>'
founds the lefpulative and judiciary authorities in the same body,
in violation of the well-known maxim which rrri)uires a aepara-i
tjon of tliem. 2. That it accumulatt^ an undue proportion
power in the Senate, which haa a tendency to make it too eristo*
cralic. 3. That the cfRciency of the court will be impairw] by
the circumatanco that the Sonalo haa an agency in appointment
to office. 4. That its efltcioncy ia still further impaired by its
participation in the functions of the treaty-makinR power.'
§ 749. The Grst objection, which relates to the supposed neces-
sity of an entire separation of the legislative and judicial powers,
has been already discussed in its most general form in annther
place. It has been shovi-n that the maxim does not apply to
partial intermixtui-os of these powers; and that such an inter-
mixtui-e is not only unobjcctionablo, but is, in many cases, indis-
pensable for the purpose of preserving the dtio indojK*ndencc of
the different departments of government, and their harmony and
t Tk FalMilU, K<M. «5, Sfl. * Tbc PalmUtt, Ho, ««.
CB.X.]
TBK SENATE.
MB
I
healthy operation in the adTancctnent of the public intereata and
Uic praMTvatiou of the public liljcrtics,' Tlie ijueatiun ift not ao
much whi'thcr any iatormixturo is ulluvable, as whether the in*
tcrmistuiv of the aiitlioril}' to try itD|icuchiuctit« with the other
fuQC'tiuim u( the Sviialo ia aututury uiiil ii^cfal. Now, nome of
thc«c fiitictioiis conatitiitc a sound dmuioi) for the investment of
the i)owor in this bmiich. Th« offuiiwa wliich the (wwer of im-
peachment is designed principally to reach are those of a politi-
cal or of a iudie.ial character, llicy arc not tliose which Ho
within the scope of the ordinary iiiiinicipal jurisprudence of a
country. Tliey are founded on difTcreiit principles, are govcnicd
bydiEToreut maxiios, are directed to different objects, and require
different remedies from those which ordinarily ap)ily to crimes.'
80 far as tlicy arc of a judicial character, it is obriougly more
safe to the public to confide them to the Senate than to a mere
court of law. The Scnat*! may be presumed alwaya to contain a
number of distitifniisbcd lawyers, and probably some persona who
hare held judicial stations. At the same time thoy will not have
any undue and immcMliatc sympathy with the accused from that
common professional or corporation spirit, which Ss apt to per-
vade tbiise who are eng:agi>d in similar pursuits and duties.
§ 750, In regard to political offences, the selection of the sea-
fttora hits some positive ndvantn^ea. In the drat place, they may
he fairly prtvumod to have a more enlarged knowlc^lge than per-
00ns in olher aituations, of political functions and titcir difficul-
tira and embarrasamenta ; of the nature of diplomatic ri^'hls and
duties ; of the e.xtent, limits, and variety of executive powers and
operations; and of the sources of involuntary error and unde-
si^ed excms, as contrudislinguiHhi.-d front those of meditated
and violent disregard of duty and rigtit. On the one hand, this
very experience and knowledge will bring them to the trial with
o spirit of candor and intelligence, and an ability to comprehend
and scnitiniio the charges against tlie accused; and, on the other
hand, Ihcir eonnectioo with, and dependence on, the States, will
make them feel a just regard for the defence of the rigli1» and
the interests of the Htalcs ond the people. And this may prop-
crly lead to another remark ; that the ]>ower of impeachment is
peculiarly well fitted to be left to the final decision of a tribunal
> AbI*, Vol. £, I SS4 U> 510 ; llairli o« Coiwtituliaa. «lt. tl, p. S13.
• 1 WilMo'i U« Uck tSI, US.
li
sso
CONSTITtmON OF THB tTNTTED STATES. f BOOK nu
tiMbpoidd of rc|>ri-8cuiativeii of nil th« Statei, hftWnK a common
iiitemito mftiiitaiii tlic lighttt of all, and yet Im^vdikI the reach
of local and sectionnl prejudicvs. Surely, it will not readily lie
Admitted b; the Kealontt defenders of ^tate rights and Rtat« jeal^
ousies, that the power ia not safe in tlie hands of all the Stat
to bo used for their own protection and honor.
§ 7M. The next objection regards the undue aecuntulation
power in tlie Senate frwn thi» source connected vith other
HourceB. So far M any other powers are incompatible with and
obatnictive of the proper escrcise of the power of impeachment,
they will fall under consideration under another head. But it,
iii not eafty to perc;eive what the precise nature and extent of
objection is. What is the due meaaure or criterion of piiwer lo
be given to the Senate? What ia the standard which is to be.,
assumed ? If we ar« to regard theory, no power in uny dep«r
mcnt of gorernment ia undue, which is safe aud useful in its act-
ual operations, which is not dangerous in its form, or too wide
Jo its extent. It is incumbent, tbon, on those who press the ob
jcction, to establish by some sound reasoning that tho power ia
not safe, but mischievous or dangerous.' Now, the power of im-
peachment is nut one expected in any government to be in con-
stant or frequent exercise. It is rather intended fur occaaitmal
and cxtraordinarj- cast-it, where a superior power, acting for the
whole people, is put into operation Ut protect their Hghta, and
to rescue their liberties from violation. Such a power canno^
if its actual exercise is properly guarded, in the bands of func-
tionaries responsible aud wise, be justly said to be unsafe or
dangerous 1 unless wo are to say that no power which is liable to
abusi! should be, under any circumstances, delegated. The sei
atora camiot be presumed, in ordinary decency, not to be a body^
of BufHcient wisdom to be capable of executing the power; and
their rcspongibility arises frum the moderate duration of their
office, and tlieir general staite in the interests of the eomniUDity,
08 well as their own sense of duty and reputation. If, passing
from theory, resort is had to the history of oilier governinonis,
there is no reason to suppose that the jiossesiiion of the power of
trying impeachments has ever Iwen a source of undue aristocrati-
cal authority or of dansrcrous influence. The history of fJreat
Britain has not cstablislicd that the House of Lords has become a
t Vm TtdmliO, No. M
TDE BEKATE.
£51
^
I
^
dangerous depositary of influ«nce of any sort from iU being a
high <:ourt of iiDpeachmentB. If tho power of Jm{*enchiiieiit has
ever been abused, it has not tmnipled iipoii popular rtghte. If it
has fltruck down high victimti, it hA)i foliow«d, rather than led,
tho |>oputar opinion. If it has been an inalnmient of injustice,
it has been front yielding too much, and not too little. If it has
eometimca auETcrcd an offender to escape, it baa far more fre-
iguontly purilicd the fnuntaind of justice, and brought down the
favorite of euurta and the pervertor of patronage to public hu-
miliation and diit^^ee. And, to bring the caae home to our own
^tute i^vcmmviilii, tho power in our State senates has hitherto
been without don^vr, though certainly not without efficiency.
§ 752. The next objection is, that the power is not ofReient or
safe in connection with the afiency of the Senate in appointmenta.
11ie argument la, tlutt senators who lutvo concnrrud in an ap-
pointment will be too tndul^'nt judges of the conduct uf the men
in wliose cflicient creation they have iHirtioi[K)ted.' The same
objection lies with equal force against mil )|Overnmenls which
intrust the ]iower of appointment to any persons who hare a right
to remove tliem at pleaaure. It might id such cases be urgod
that the fat'oritism of the nppointcr would always screen Ui« mis-
bchavinr <if the appointee*. Yet no one doubts the lilneiia of in-
tnisting such s (lower; and confidence is re|>08bd, and prufterly
reposed, in the character and responsibility of those who make
the appointment' The objection is greatly diminished la its
force by the consideraticm that the Senate has but a slight par-
ticipation in the appointments to ofHce. The President is to
nominate and appoint; and the Senate are called ugion merely to
confirm or reject the nomination. They have no right of choice,
and therefore must feel less solicitade as to the individual wlto
is appointed.* But, in fuct, the objection is itself not well
founded; for it will rarely oceur that the persona who have con-
curred in the appointment will be members of the Senate at tlie
time of the trial. As oac-third is, or may be, chanitod every
two years, the case is highly improbable; and still more rarely
can the fact of tJio ap|)ijinlment operate upon the minds of any
considerable number of the senators. What iMssibtc operation
Id it bare upon th« judgment of a man of reasonable intoUi-
> The PMUntiat. Ko. 64.
■ lUO.
• IIU.
5S2
COSSTITUnON OP THE tmiTED STATES. [BOOK HI.
gcuce Kod integrity, tbitt be h&d as9ent«d to the Appointment uf
any iDdividiml of whom ho ordinarily could have little or no per-
sonal knowledt^^^ and in trhoAe appnintnient ho hod coiicurr
upon the jud^^uaent and recoiiiniendation of others? Sndi .
intlucuce in too remote to be of mucb weight in human affairs :
and, if it exiatei at all, it is too common to form a just exception
to the competency of any forum,
§ 758. The next objection is to the inconvenience id the union
of the power with that of making treaties. It has been stmniily..
urged that ambosaadors arc appuinted by the Preaident, with tliS"
concurrence of the Sonabe; and if be makea a treaty wliich is
ratified by two-thirds of Uic Senate, however corrupt or est-ep-
tionablc his couduet may have boon, tlicre can bo little ehancc of
redress by an impeachment If the treaty he ratified, and tlw
minixter ^x: impL-actiu'] fur concluding it because it i» dcnif^mtory
tu the hunur, the interent, or perhaps to the sowreiguty of tlie
nation, who (it is said) arc to be his judges? 'Ilie Seiuito, by
wlium it hiM been approved aitd ratified? If the Frcitldeut be
impeaolied for giving impro|>cr instructions to the minister, aud^
for ratifying the treaty pursuant to his iustnictions, who arc
be his judges ? Tlio Seiialc, to whom the treaty has been sob-
mitted, and by whom it has been approved and ratified ? ' This
would be to constitute tJie senators tlicir own judgra in every
case of a corrupt or pcriidious eitecution of their trust'
§ 7^4. Such is the objection pressed with unusual earnestness,
and certainly having a more plauttible foujidation tluin uilhcr uf
the preceding. It preaupposes, however, a stato of facts of a
very extraordinary cliaracter, and, having put an extreme coae,
argues from it against the propriety of any delegation of the
power which in such a cose might be abused. This is not Jnst
reasoning in any case, and least of all in cases reHfuvling thepoi<
ity and organixation of governments : for in all such canea there
must be power reposed in some person or body, and wherevor
it is reposed it may bo abused. Now, the ease put is eitJier one
where tlie Senate bus ratified an appointment or treaty, inno-
cently believing it to be UDOXceptiousble and beneficial to the
country, or where the Senate has corruptly ratified it, and basely
betrayed their trust- In tlie former case, the Senate having
acted with fidelity, according to their best sense of duty, would
> 1 TiukM* Bkok. Cacnn. Afp. 33f, 83<. * The F«d«i«lfat, Ko. OS.
CB. X.]
THE SBN'ATB.
65S
I
I
foci no sympathy tor a corrapt executiro or minister who bad
acted with fraud or dishonor unknown to tlicin. U the treaty
were good, they might still desire to punish thusc who had acted
busely or corruptly in nvgotiatitig it. If bud, they would feel
indif^natiuu for the itnpottitiun procti^vii upon thvm by an vxvca-
tfvu or minister in whom thuy plooud contidouco, inxtoad of Bvm-
patliy for his misconduct. Tliey would fuel that thoy had bc«u
bctra^-od into an orror, and would nithor have a bius against
than in favor of t]io deceiver.
§ 765. If, un the other hand, t)ie Senate had corniptly assented
to the appuinluK-iit aiid tre-nty^ it is certain that there wuuld he
DO efTectiinl remedy by im))cachmcnt so long as the same persona
romained members of the 8ennt«. But even here two years
might remove a larire number of tlie guilty oonspimtors, and
public indignntion would probably oomi)cl the resignation of all.
But is snrh a case siippoenblet If it ix*. then there are others
quite within the same range of supjxKiition, and equally mis-
ohievous, for which there can be no remedy. SupjMge a majority
of the Senate or House of Representatives corniptly pass any
law, or violate the Constitution, where ie the remedy? Suppose
the House of Representatives carry into effect and appropriate
money corruptly in aid of such a corrupt treaty, where is the
remedy t Why might it not be ax well ur|!t-d that tlio Ilouse
of Ropreaentuthx-s ought not tu be intrusted with tlie power of
impenchmout, because they might corruptly concur with the es-
Acutlvc in an injurious or unconslilntional measure, or might
corniptly aid the execnti>-e in negotiating a treaty by public re-
solves or secret inatructtomi ? Tlie truth is, that all arguments
of this sorl, whfeh suppose a combination of the puMic function-
aries to cirstroy (be liberty of the people and the powers of the
government^ are so extravagant tliat they go to the overthrow of
all delegated power; or they are no rare, and remote in practice,
that they ought not to enter as elements into any Btnicturc of a
free government. The Constitution supposes that men may lie
tmated with power under reasonublc gtiurds. It presumes that
the Senate and the executive will no more eonspire to overthrow
the govommciti than the Ilouse of Representatives. It supposes
the best pledges fur ndclity to be In the character of the indi'
riduals, and in the collective wisdom of the people in the elioice
of agents. It docs not in decency presume that the two-thirds
S64
C0MST1TDTI0N OP THE UNITCI) STATES. [BOOK III.
of the Senate repreeenting the States will corruptly unite with
the executive, or abtme their power. Neither does it guppone
that a in&jortty of the House of BepreBentativea will corruptl;
refuse to iiupeavli, or corruptly pass a law.'
§ 756. But, pasiing by, for the present, (his general reasonini;
on the objcctiong stated, tct us see if any otltor antl better practi-
cal ioheme for the trial of iinpeachiuentM can be dcviitMl. Oov
Rcheme iniglit be to intriut it to tlic Supreme Court of the United
States; anolJier, to intrust it to that Court niid Uie Hciiat
jointly; a third, to intnist it to a special ti'ibunal, appointetf"
permanently or temporarily for the purpose. If it shall appear
that to all of theRe schemes equally strong objections may
made (and probably none more unexceptionable could be su^
gested). argument in favor of tlie Senate will acquire more per-
Huaaive cogency.
§ 767. Firat, the intrusting of the trial of impeachments to
the Supreme Court. This was, in fact, the original project in the
convention.' It was at first agreed that the juriadictitHi of the
national judiciary should extend to impeaelmiouts of national
officers.* Afterwards this clause was struck out,' and tliu power
to impeach was given to the House of Representatives;' and (he
jusrisdiction of the trial of impeachmnnts was also given to the
Supreme Court" Ultimately, the same jurisdiction wasasaigned
to the Senate by the vote of nine States against twa^
§ 758. The princijtal reasons which prevailed in the conven-
tion in favor of the final decision, and against Testing the juris-
diction in the Supreme Court, may fairly be presumed to ha\'«
been those which are stated in the Federalist. Its language is
as follows: "Where else, than in the Senate, could have been
found a tribimal sufficiently dignified or suflieiently indejiendent?
What other body would be likely to foci u>nlldeDce enouirh in its
own situation to preserve, unuwcd and uuintluenced, the necessary
impartiality between a]i individual accused and the reprcseota-
tive« of the people, his accusers? Could the Supreme Court
have been relied upon aa answering this description 7 It i« mnch
> Tba Ftdaralut, Ko. W.
■ Jogm) of ConrtatiM^ pp. m, HI, l)ir, ISO, 217, S!!a, 83J. SU. 39), tit, tU.
• Journal e4 ConnotioD, pfk. 89. IS), 1ST. • Id. 1S9.
• Id. SIT. K*. •«.««.
t Id. S24, SMv SM.
CB. X.]
tBB SBfATB.
to be doubtod whether the membera of thnt tribunal would, at
al) time*, l>e endowed with »o emiuent a portion of fortitudo u
woiiM be called for in the exercise of iM difficult a task. And
it in still muro tu be doubted whether they would p088C«ft ft de-
grt^o of credit and Huthority which mifrfit, on certain oocasions,
bo indinpcnsable towards reconciling the people to a deeision
which should hapi>cn to clash witli an aci^usation brought by
their immediate reprcscntutivc& A deficiency in the first would
bo fatal to the occuHcd; in the hist, dangcroua to the public
tranquillity. The hazard in both these resix.'cta could only l>e
avoidisl by reuderiug that tribunal luurc nuineruuB than would
consist with a reasonable attention to economy. The nccesaity
ot a numerous court fur the trial of impeachments is equally dic-
tated by the nature of tJie proceeding. This can never bo tied
down to such strict niles, either in the delinejition of the offence
by the prosecutors or in the eonstniction of it by the judges, aa
In common cases serve to limit the discretion of courts in faror
of personal security. There will be no jury to stand between the
judges who are to pronounce the sentence of the law and the
party who is to receive or suffer it The awful discretion which
a court uf im|>eachmonts must necessarily have, to doom to honor
or to Infamy the m««t confidential and the most distinguished
characters of the commimity, forbids the commitment of the trust
to a small number of pi^rsons. Tliese considerations seem alooe
to authorize a cooclusion that the Suprente Court would have
been an improper substitute for the Senate as a court of impeach-
ments.
§759. "There remains a further consideration, which will
not a liltle strengthen (his cnncliision. It is this. The puni»l)-
ment which may W Iho consequence of conviction upon impeach-
ment, is not to terminate the chastisement of the offender. After
having Ini-n Sfrnteneed to a |)crpctual iMtracism from the oateem,
and confidence, and honors, and emoluments of his country, ho
will still l>c liable to proftecution and punishment in the ordinary
course of law. Would it be proper that the persons who had dis-
poaed of his fame and his most valuable riglits as a citizen in one
trial should, in another trial, for the same offence, be also the
disposem of bis life and fortune? Would there nut be the great-
est reason to apprehend that error in the first sentence would be
the [Mtrvnt uf error in the second teatence ? Hiat the strong bias
AM^
£56
CONSTITUTION OP tHE UNITED STATES. [BOOK HI.
of one decisiuii would be apt to overrule tbe inBuencc of Miy new
tiKhtB wliioti mi^ht be brought to vary tiic comploxtoa of aiiotlier
decision ? Those who know anything of buuiuii nature will not
hi-aitato to answer these questiona iu Uie alTirrautivc, and will be
ut no loiM to perceive that by making the same peruwa judges ia
botli ca«i:«, tl)08« who might happen to be the objects of prosecu*
tion would, in a great measurti, be deprived of the double secu-
rity iutvndcd iJicin by a double trial The lOM of life and estate
would often bo virtually included in a sentence which in ita
teniis inipurft-d nothing more than dismission from a present,
and diiiiiuali filiation for a future otlicc. It may bo said that the
ioterveRtion of a jury in the accond itutanoe would obviate the
danger. But juries arc frwjuenlly iu)Iuciice<i by the opinions vl
judges. Ttivy are aomL'timcs induct-d to find special verdicts,
which refer the main question to the decision of the court Who
would be willing to stake his life and his estate upon a verdict of
a jury acting under the auapicca of judges who had pmdetermined
his guilt »"»
§ 760. That tliore is great force in tliis reasoning all person*!
of common cuudur must allow; that it is in every resjH^t satis-
factory and unanswerable haa been denied, and may be fairly
qurationed. That part of it which is addressed to the trial at
law by the name judges might have been in some degree obviated
by confiding the jurisdiction at law over the offence (as in fact
it is now confided) to an inferior tribunal, and excluding any
judge who sal at the impeachment from sitting in thv court of
trial. Still, however, it i-amiut be denied that even in such a
case the prior judgment of the i?uprcmo Court, if an appeal to it
were not allowable, would have ver^- great weight upon the minds
of inferior judges. But tlint part of the reasoning which is ad-
dressed to the importance of numbers in giving weight to the
decision, and cspecinlly thiit which is addressed to the public
confidence and rc«|>e«t which ought to follow upon a deeisiou, is
entitled to very great weight. It is fit, however, to give the an-
swer to the whole rcag^mins by the other side in the worda of a.
learued coniinentutur, who has embodied it with no small ahare
of ability and skill. The reasoning "seems," says he, "to have
forgotten that senators may be discontinued from thi-ir seataj
merely from the effect of popular diaapprobatioo, hut tliat the
> Th« rolcnliit, Ndb (t& But m« IUvIi on tLeCoiiMilutlaB, A. 33, "pp. til, SU,
TUK SENATE.
AST
judges of the Supreme Court cannot. It seems also to have for-
gotten that, whenever the Preatdcnt of the United State* is im-
peached, the Constihition expresaly requires that the Chief Jutitice
of the Supreme Court ehall preside at the trial. Are all tlie con-
fidence, all the firmness, and all the impartiality of that court
supposed to be concentred in tbo Chief Justice, and to reside in
his breast only ? If that court could not Im relied on for Uio trial
of im|)cachmenls, much less would it seem worthy of rcliauc«
for thv dcUTini nation of any question between the United Slates
and a particular State; much less to decide upon the life and
death of a jjenwn who«»c crimes might subject him to impeach-
mcnt, but whose influence niiglit avert a conviction. Yet the
courts of the United Htules arc by the Constitution regarded as
the proper tribunals where a party convicted upon an impeach-
ment may receive that condign punishment which the nature of
his criraca mar require ; for it mnst not be foi^otten tliat a per-
son convicted upon an impeachment will nevertheless tfc liable to
indictment, trial, judgment, and punishment according to law,
etc. Tlie queMion, tlten, might be retort^-d; can it lie supposed
that the Kennt4>, a part of whom nmi<t have been cither parlUrpa
eriminit with the person impeached, by advising the measure for
which he is to bo tried, or must hove jiVined the op]>oHition to
that measure, when proposed and debated in the Senate, would
be a more independent or a more unprejudiced tribunal than a
court coni[K>»Mi of judges holding their oRicca during good be-
havior, and who could neither be presumed to have participated
in the crime, nor to hare prejudged the criminal ? " '
§ 7tn. Thin reasoning also has much foree in it; but in can-
dor also it mnst be admitted to bo not wholly wicxceptionablc.
That [tart which is addressed to the circumstance of the Chief
Justice's presiding at the trial of the President oi the United
States waa (as we shall hereafter sec) not founded on any suppo-
sition that the Chief Juatice would bo suiwHor in confidence and
firmnesa and impartiality to tlto residua of tliu judges (though
talents and public res[Kct and acquirements ho might fairly
presumed their auporiur), but on the necessity of excluding
the Yiov-Presidcnt from tbo chair when he might have a mani-
fest interest which would destroy his impartial ity. That part
which is addressed to tbo supposition of the Knators being par*
> 1 Tack. Bluk. CMtu. Atip. 337.
558
CONBTITUTIOS OP THE DMITED STATES. [BOOK III.
ticipei criminiM is still more exceptionable; for it is not only in-
correct to aHirm that the senators ntiuf be in such a prediciuneiit,
but in all probnbility the 8«nators would, in almost all rase^, W
without anv particii>atiQn in tJie offence. The offences wliicb
would bo ^nerally prosecuted hy impeachment would be those
only of a high character, and belnnjiing to persons in eminent
stations, — such as a head of department, a foreign minister, a
judKe, a rice-president, or a president Over tlie CKmduct of auufa
persons the Seoatv could ordinarily have no control ; and a cor-
rupt combination with them in the discharge of tlie duties of
tJicir respective offices could scarcely be presumed. Any of these
oflicers might be bribed, or commit groiis misdeuieAnors, wilhun
a single senator having the least knowledge or participation in'
the offence. And, indeed, very few of the senators could at any
tjrae be presumed to bo iu habits of intimate personal confidenc
or connection with many of tJiese officei's. And, so (or as public'
responsibility is concerned or public confidence is required, the
tenure of office of the judges would have no stnmg tendency tutj
secure the former, or to assuage public jealousies so as peculiar!
to encourage the latter. It is, perhaps, one of the circumstances]
mo«t im]>ortant in the discharge of judicial duties, that U
rarely ciirry with them any strong popular favor or popular Jnfiu
enca The influence, if any, is of a different sori, ariiting from'
dignity of life and conduct, abstinence from political contests,
exclusive devotion to the advancement of the law, and a firm ad-
ministration of jimiice ; circumBtance.4 which are felt more by tttt
profession than they can be expected to be praised hy the public
§ 762. Besides, it ought not to be overlooked tliat such .
additional accumulation of power in the judicial departnte
would not only furnish pretexts for clamor against it, but might
cruute a general dread of its influence, which could hardly fail to
disturb llio salutary effects of Its ordinary functions.' There is
nothing of which a frco poople are so apt to be jealous as of the
existence of political functions and political checks in those who
are notappoint«d hyuud made directly re^iponsible tu themselves.
The judicial tenure of office during good bcharior, though in
some respects most favorable for an independent discharge of
Dese functions and cheeks, is at tlie same time obnoxious to
m.Q strong objections as a remedy for impeachable offeucos.
1 Ths Foltnliit, No. «i.
CH. X.]
THE SENATK.
£69
§ 768. Thopc are, however, reagons of great weight bosidea
those which hnre been already alluded to, which fullf justify the
concluaion tJiat the Suprnme Court is not the most appropriate
tribunal to l« invested with authority to try iropcachments.
§ 764. In the first place, the nature of the functions to be per-
formed. The ofTenees to which the power of impeachment has
been and Ib ordinarily applied a« a remedy are of a political
character. Not but that Crimea of u strictly legal character fall
within (he Bcopo of tlie jMwer (for aa wo shall presently iet,
treason, bribery, and ulher hi^h cnmca and misdcmeunora arc
expressly within it); but that it has a more cnlar^-d upuraliun,
and reaches what arc aptly termed political offeuous, f^rowiof;
out of jtersonal misconduct or gross neglect, or usurpation, or
habitual disregard of the public interests, in the discharge uf the
duties of (wlitical ofike. Tliesc are so rariotis in their character,
and so indelinable in th^'ir actual iorolution.t, that it is almost
impossiTitc to provide Hystematically for them by poAitive law.
y must be examined ujwn very broad and comprehensive
prinri|ilp« of public poliry and duty. Thoy must \>e judurcd of
by Uie habitu and rules and principlcB of diplomacy, of depart-
inentat operations and arrangementa, of parliamentary practioe,
of execuliTe ciiat4>mR and negotiatiomt, of foreign as well as
domestic politicnl movcmcnta; and, in short, by a great variety
of circumstances, as well those which aggravate as thoae which
extenuate or justify the offensive acta which do not properly
belong to the judicial character in the ordinary administration
of justice, and are far removed from tlie reach of municipal juris-
prudence. They are duties which an; easily undcnstood by states-
men, and are rarely known to judges. A tribunal comiwecd of
the former would therefore be far more competent in point uf in-
teltif^nce and ability than the latter for the diaeharge of the
functions, all other circumstances being equaL And, surely, in
such grave afTairH, the competency of the tribunal to discharge
the duties in the best manner is an indispensable qualificatiua.
§ 765, In the next place, it is obvious that the strictness of
the forms of proceeding in cases of offences at common law is ill
adapted to impeachments. The very habits growing out of judi-
cial employments, the rigid manner in which the di»cretton of
judges is limited and fenced in on all sides, in order t'> protect
persons accused of crimes by rules and precedents, and the adhe-
G66
C0N8TITCTI0X OP tHE OHITBD STATES. [bOOB OI.
renoe to technical principleii, wliich, perlitpe, distiQ^cnislirs this
branch of th« law niorc tbun any other, aro all ill adapted to tite
trial of political ulfencea in the liroad coutrie of impcachiiieutA
Anil it lioM been obaerrod, with great propriely, thai a tribunal
of a liberal and comprehensive character, coulined a« little as
bte to aCrict forms, enabled to continue its siiision as long
nature of the law may require, qualified to viuw the charge
in all its bearings and depcndenciea, and to appropriate ou sound
principles of public policy the defence of the accused, nei-ms ia<
dispensable to the value of the trial.* The hiat»ry uf impuacb*
monts, boUi in England and America, Justifies the romark.
There is little technical in the mode of proceeding; the charges
are suHiciently clear, and yet in a general form; tiiero arc few
exceptions which arise in the application of the evidence which
grow out nf mere technical niles and quiliblen. And it has re-
peatedly been acen that the functions have been better andei^
8to<^, and more liberally and justly expounded, by stateamen
than by mere lawyers. An illustrious instance of thia sort is
upon record in the case of the trial of Warren Haatin^, where
the queMinn whether an impeachment was abated by a di&soln-
tion of Parliament was decided in the negative by the Ilouae d
Lorda, as well a.<i the HmLte of Commons, agninat what seemed to
be tile weight of pi-ofeswional opiuion.'
§ 766. In the next place, the rery functions involring polili-
cal interests and connections are precisely tliose which it Be«ms
most important to exclude from the cogniuince and participatJon
of the judges of the Supreme Court. Uuch of Uic reverence and
respect belonging to the judicial character arise fmra the belief
that the tribunal is im{)artial, as well as enlightened; ji»t, as
well as Eiearching. It is of very great conseqaence that judges
should not only be, in fact, above all exception in this resijoct,
but that they should be generally believed to I>e so. They should
not only bo pure, but, if possible, alwve suspicion. Many of the
offences which will be charged against public men will be gen-
erated by the hcala and animoaities of party, and the very cir-
cumstance that jndges should be called to att, as umpircR, in the
controveniiea of party, would inevitably Involve them in Uie
common odium of partiaaoa, and place them tn public opimoOr if
1 Riirk oil tbe Coaititutkm, cb. 33, p. SIS.
■ 4 BtMk. CoDun. too, ChriUka't Not*.
CB. J.}
THE 8ESATB.
661
not to fact, af least in form, in the nmiT' on une side or tba
other. The habita, too^ arisiof; from auch funclious, will lead
them to take a mure ardeut part in public diMuHiionx, and in the
rindicatiun of tlioir own political deciiiiunK, than seems dceirablo
for ttiMic who are daily called upon to decide upon the private
rigbtt and ckima of men diatiutcuishcd for thuir political conae-
quouec, leal, or activity in the raukH of party. In a free (^vem-
meut like oura there U a pvciiHor propriety in withdrawing aa
much aa pwtsible all judicial funetionarica from the cootiwla of
mere party atrife. With all their efforts iu aroid them, from
the friM) intercourse, and constant changi-s in a rcpubliciin gor-
emmcnt both of men and measaros, there is at all times the most
imnitncnt danf^r tliat all classes of society will be drawn into
the vortex of politics. Whatever shall have a tendency to secure
in tribunals of justice a spirit of moderation and exclusive devo-
tion to juridical dtitic« is of inestimable value. What can more
surely ftdvanc« this object than tho exemption of them from all
participation in, and control o%'er, t)»o acts of iwlltical men ia
their oflieinl duties? Where, indeed, thum; acts fnll within the
character of known crimes at common Isivr or by positive statute,
there is little difliculty in tho duty, because tho rule is known,
and equally applies to all persons, in and out of oKiee; and the
facts are to be tried by a jun>', according to tho habitual coorsa
of investigation in common cases. The remark of Mr. Woodo-
son on tills siibjt^ct is equally just and appropriate. After hav-
ing enumerated some of the cases in which im]>e«chnienta have
been tried for political offences, ho odds that from thette "it ig
apparent how little the ordinary trihiioals are calculatt^ to take
cognizance of such olTenraa, or to ini-esti^te and reform the gen-
eral polity of the sUte. " ^
§ 707. In tlie next place, tho iudge« of the Supreme Court are
appointed by tlie executive, and will naturally feel some sympa-
thy and attachment for the petson to whom they owe this honor,
and for those whom be selects aa bis conlidential advisers in tho
departments. Yet the President himself and those cunfidenttal
advisers are the very persons who are emmently the objects to
be readied by the power of impeachment The very circmn*
ttOItOO that some, pcrham a majority, of the Court, owe tiK-ir
eleratJon to thu same chief mafclstrato \f\ione acts, or tlioee o(
VOL. I. — 3S
I S WomUmo, LmI. M,f.901.
562
CONSTITUnOS OP THB UKITKR STATES. [OOOK Ul.
his conAdential ndrisers, are on trial, woul<] have Bomc tendt-acjr
to diminitih the public confidence in the imptu-tiallty and inde-
pendence of the Irilnina!.
§ 768. But, in the next place, a far more wcii^hty considera-
tion Es, that Bome of the members of the judicial department may
Im! imjMi^rhecl for malconduot in oDice; and thim llmt spirit
which, for vant of a hotter term, has been called tlie a>r]x>ra-
tion spirit ot organized tribunald and societies, will nalurallj
Jk- brought into play. Suppose a judge of tho Supreme Cotut
yhould hiniHclf bo impeached; the number of hist trierB wonld
not only be diminished, but all the attachmentii and partialities,
or it may Iw tho riTalrios and jealotmicfl, of peera on the aan«
bench, may be, or (vbat is practically almost ait miRchicTouii)
may be sHspected to be, put in operation to screen or exaggemta
the ofTence, Would any person soberly decide that the jnd^ea
of the Supremo Court would be the safest and tlie best of all tri*
bunats for the trial of a brother judge, talking human feelings ag
they are and human inlirmity aa it is ? If not, would there not
be, even in rt-lation to inferior jiidi^s, a sense of iodulgence., or
a bid* of opinion njjon certain judicial acts and practices, which
might incline their minds to undue extenuation or to audii
harshness? And if there should be, in fact, no danger fron
such a Bonrce, is there not aumo danger, under wic:h eircuu
stances, that a jealousy of the operations of judicial tribunals
over judicial offences would create in the minds of the commnit-
ity a broad distinction in regard to convictions and punisbmenla
between them and merely political offences? Would not the
power of impeachment ocase to poseisss itit jnst rc^'eren<M? and au-
thority if such u distinction should prevail; and cspcci;illy if
political victims rarely escaped, and judicial officers as rarely
sufTcrcd ? Can it be desirable thus to create any tendency in tJia
public mind towards the judicial department which may impair
its general respect and daily utility ? >
§ 7tiy. Considerations of this sort cannot bo overlookeil in in-
quiries of this nature ; and if to some minds they may not Bfrm '
wholly natiftfactory, they at least establish that the Suprein*'
Court is not a tribunal for the trial of impeachment wholly sIiotc
all reasonable exception. But if to considorations of tliiii iwrti
it is added that the common practice of free govcrnmcnis, nndl
> But we lUwln oa Ui« OiMitlMtiM, oh. SS, (>. Hi.
THE 8ESATE.
56Z
«Bpcci»lly of England and of the States composing the Union,
has been to conltdo this power to one department of Uie Icgiata-
tivc body upon the accunation of another; and that thU han been
found to work well, and to adjuat itaelf to the public fvelingii
and prejudices, to the dignity of the legialatiire, and to Uie tniu-
qnillily of the State, tlte inference in its favor cannot but bo
greatly strengithoned and oonfirmcid.
$ 770. To thotie who felt dif&uiUien in confiding to the Su-
premo Court alone the trial of impoachments, the at'heme might
present itself of uniting that court with tho ^nate jointly for
_ thia purpose. To this union many of the objoctiuns already
stated, and esjxwiully those founded on the peeuliur funelions of
the judicial ileiwrtmcnt, would apply with the same force as they
do to Twting the •Supreme Court with tJio e.'teluitive jurisdiction.
In some otlicr respects there would result advantogea from the
union; but tliey would scarcely overbalance tlie disadvantages.'
If the judges, compared with the whoI« body of the Senate, were
few in number, their weight would scarcely be felt in that body.
Tba habita of co-ofieration in common daily duties would creAto
ainoag the senators on habitual conl'idence and sympathy with
each other, and the same habits would prodnoc « correspondent
influence among tlio jiKlgra. There would, therefore, be two dis-
tinct bodies acting together pro re nattt, which were in a great
measure strangera to each other, and with feelings, purauita, and
modes of reasoning wholly distinct from each other. Orcat con*
trariety <rf Oftinion might naturally he prcaumed under such cir*
cumstoncefl to spring up, and, in all prolwbility, would become
quite marked in the action of the two bodina. Supitoae, u{K)n nn
impcocliment, the senators should bo on ono sido and the jndgea
on the other; supp^wo a minority composed of all tho judges and
a considerable number of the senators; or suppose a majority
made liy tho co-operation of all tlie judgm ; in these, und many
other cases, there might be no inconsiderable ditlieuhy in outis-
fying the public mind aa to the result of the impoaehnient Ju-
dicial opiuiou miglit go urgently one way, and pulitienl character
and opinion as urgently another way. t^uch a stute of things
would have little tendency to add weight or dignity to the court
in the opinion of the community. And pi<r)iM)i!t a, lurking sus-
picion might pervade many minds, that one body or tJio other
» Jim r«dMalI*t, Vo. OS.
564
CONSTITUTION OP THG ITNTniD Stk-aB. [BOOK III.
bad pOBsessed an undue preponderance of influence in the actual
dcciaioR. Even JDulouaics and discontcnta might grow up in th«
bosonui of tlio cumporient b'jdtca tlivnutclvt-K, frum their uvii
difference of gtrut-'luru and hubiUt and oi:ciipatii>n« and duties.
The practice of go^-e^nmi■utit has not hitherto Mtablishcd anjr
threat value as attachL-d to tJie intermixture of different bodies for
single occasions or temporary objects.
§ 771. A third aebemo might be to intrust tho trial of impeach-
mcula to a Bpccial tribunal, conslitutud for tliat «ole purpose.
But whatever arguments may bo foimd iu favor of such a plan,
there will be found to be corre«pondeut objections and difficuiti'
It would tend to increase Uie coniplesity of the political raachiue,
and add a new spring to the operationa of tbe government, the
utility of wbicb would be at least qncstionable, and might clog
its just movements.* A court of this nature would be attended
with heavy expenses, ajid might, in practice, ba subject to many
casualties and inconveniences. It nntst consist either of perma-
nent officers, stationary at the seat of government, and of coujm
entitled to fixed and regular stipends, or of national olfireni,
called to the duties for the occaaion, though prcvioiiBly designated
by office or rant ; or of officers of tlie State govemmenta, selected
when the impeachment was actually d^pending.^ Now, eitlier
of tjiene alternatives would he found full of embarrassment and
iotrieacy, when an attempt should be made to give it a definite
form and organization. The «>urt, in order to l>o efficient and
inde|)endent, ought to be numeruua. It ought to possess talents,
experience, dignity, and weif^t of character, in order to obtain,
or to hold, the confidence of tlio nation. What national officera,
not belonging to either of the great departments of tbe govem-
mcntt legislatire, oxeeutivi^ or judicial, could be found embra-
cing all these requiaite qualifications? And if they could be,
what compeuaation is to be made to them in order to maintain
their character and importanoe, and to secure their ser^-ici-s?
If the court is to be selected from tbe State functionaries, in
what manner is this to be aocompliahcd ? How can their ac-
ceptance, or performance of the duties, bo cither secured or
compelled ? Does it not at once submit the whole )>ower of im-
iwachment to the control of the State governments, and thus
surrender into their hands all tbe means of making it efficient
> ne FedM»litt, Vc ti. * Tb« Faknlirt, Ke. K.
CH. X.]
THE eEKATB.
MS
and Hatisfactorj- ? In political contorts it cftiinot be Bupposcd
that either the Statoa or the Stale ftiiii'tionarieii will not become
partiHaQB, and deeply iDteraated in the siiccena or defeat of meiw-
urea, in the triumph or the ruin of rivaU or oppoueiitit. Parties
will naturally desire to screen a friend or overwhelm an adver-
sary, to socun; the predominance of a local policy or a State
party; and if stt, what f^umnty ia there for any extraordinary
fidelity, independence, or impartiality, in a tribunal ho comfKNK'd,
beyond all others? L>c«cending from such ji^oeral inquiries to
more practical considerations, it may be asked, huw ohall auch
a tnlKmul be composed i Shall it be contpoeMMl of State osocu-
tivcs, or State legislators, or SUitc judges, or of a mixture of all,
or a selection fmm all ? If the body is very large, it will be-
come unwieldy and feeble from its own wejglit. If it be s
mixture of all, it will ponsefta too many elements of discord and
diventUiea of jud(!:raent, and local and profi-itiiionnl opinion, if
it bo homogcneoua in its character, n» if it consist altogether of
one claaa of men, as of the execntifce of all the States, or the
jud^:es of the aapremo courts of all the States, can it be auppoaed
(even if an e^juality in all other rcape«ts could t>e certainly o)>>
taincd) that persons, selected mainly by the States for local and
peculiar objects, could best administer tltc highest and most diffi-
cult ftuictions of the natjonal government ?
§ 772. The Federalist has spoken with unusual freedom and
directness on this subject ** The first scheme " (that is, of vest-
ing the power in some permanent national oflicers) *'will be rep-
robated by every man irbo can compare the extent of the (wblic
wants with the means of supplying them. Tlie second " (that is,
of Testing it in State officers) ''will Ik> eapouacd with caution by
those who will Rcriously consider the ditliculties of collecting
men dispersed over the whole Union ; the injnry to tlio innocent
from the pr<x'ra«tinatO(l dutermi nation of the chaises which
might be broiiirht against them ; the advantage to tlie guilty from
the of^rtunities which delay would afford for intrigue and cor-
niption , and in some cases Uie detriment to the State from the
prolongvrd innetiim of men whoso firm and faithful execution of
their duty might have exposed them to the persecution of an in-
tem|>pr,ite or denigning majority in the House of RRprnapntatives..
Though tliia latter suppuaition may Heem hareli, and might not be
likely crften to bo vurilicd, yet it ooght not to be forgottim that the
666
COSSTITUTION OF THE UNITED STATES. [BOOK HI.
demon of (sctioa will, ut certain geoftons, extend his »ceptre over
all nuiQcrous bodies of men." And th« aiibject is concluded
with the fullovriug reflection: "If mankind wera to resolvR to
agroc in no inslttutioo of government until everr part of it had
been adjusted to the rami exact ntandanl of perfoction, society
would Bonn become a general scene of anarchy, and the world a
dc*ert"l
I 778. A scheme somewhat di^erent from either (A the fore-
going has been recommended by a learned commentator,^ drawn
from the Virginia constitution, by whivlt, in that Stutc, all im-
peachments are to be tried in the courts of law, "according to
the laws of the land;" and by the State laws the facta, tat io
other cases, are to be tried by a jury. But the objections to this
course would be very serious, not only from the coRfiideration.4
already urged, but from the difficulty of impanelling a sultalde
jury for such purposes. From what State or SJtatcB ia such
jury to he drawn ? How ia it to bo selected or composed ? Whi
are to be the qualiRcations of the jurors t Would it bo safe to
intrust the political interests of a whole people to a commv
paiK'l ? Would any jiu'y in times of party excitement he fo«u
sufficiently firm to give a true verdict, unaffected by the (mpular-
ity or odium of the measure, when the natimi waa the accuser]
ThcKo questions are more easily ])ut than they can be satisfacto^^
rily answered. And, indeed, the very circumstances that the
example of Virfrinia bus found little favor in other States, fur-
nishes decisive proof that it is not deemed lietter than others tOj
which the national Constitution bears the closest analogy.
§ 774. When the subject was before the State conventions,
sllliough here and there an objection was started against the
plan, three States only formally proposed any amendment Vir-
ginia and North Carolina recommended "that some tribunal
other than the Scnnte bo provided for trying impeachments of
$&nator»,"* leading the provision in all other rcDfiecIs an It stood.
New York alone recommended an amendment, that the Sooute,
the judges of the Supreme Court, and (he first or wnior jndifi- of
the hio^ost State court of general or ordinary coiunmn-law juris-
diction in each State should constitute a couK for the trial of
impeachments.* This recommendation does not change ttie poa-
« TV Vt4ml\»t, U 0. W. » 1 Todtor'i BUck. Comiu, App. MT, 3SS.
> JoVTD. or CumBtloa, 8iin>- *». *4S. * Id. is;.
TBB SENATE.
607
ture of a single objection. It received no 8itp|)ort vlecwhere, and
Uiu 0iibjec( has since silently slept without any uffurt to rcvire it
§ 775. The conclusidu to which, upon a large survey of th»*
whole Biihject, our jiidynii'nta are naturally letl in, (hot the power
luw l>ecR wisely deposited with tlte Senate.' In tlic lanKU^eof a
learned commentator, it may he said that, of all the dupurtJnents
of the (government, "none will bo found more suitable to exercise
this peculiar juriadiction than the- Hcnatc. Although, like tlieir
accusers, they arc rcprwu-'iitativcs of the people, yet tliey arc by
a degree more removed, and hold their stations for a longer term.
They are, therefore, more independent of the people, and being
choflon with the knowledge that they may, while in office, be
called upon to exoreiAC this high function, they bring wit)) tliem
the confidence of their constituents, that they will faithfully exe-
cute it, ajid the implied compact, on their own part, that it shall
be honestly discharged. Precluded from ever becoming accusers
themselves, it is tlieir duty not to lend themselves to the ani-
mosities of party or the prejudices against individuals, which
may somctimefl uiiconseioualy induce the House of Representa-
tives to the acts of ueeu^atiou. Habituated to comprehensive
views of the great political relations of the country, tliey are nat>
urally the Itest <iualiiied to decide on those charge!) which may
have any connection with transuctions abrund or great jtolitical
interests at home. And although we cannot say that, like the
Kngliah House of Lonla, they form a distinct body, wholly unin-
fluenced by the paasions and n-uiote from the intereata of the
people, yet we can discover in no other division of the govern-
ment a greater prol>Bbility of importialitr and independence."'
§ 770. Tlic remaining parts of the clause of the Cuttstitullon
now under consideration will not require on elaborate commen-
tary, llie first is, that the Scnat«, when sitting as a court of
impeachment, "shall be on oath or aflirmation;" a provision
wfaieb, as it appeals to the conscienra and integrity of the mera-
))en by tltv same sanctions which ajiply to judges and jurors who
sit in other trials, will commend itself to nil persons who deem
the htglteat trusts, rights, and duties wortliy of the same pro-
tection and security, at least, as those of the humblest order. It
would, indeed, Ix* a monstrous anomaly, that the highest officers
miglit be convicted of the worst crimes without any sanction
1 The PeJoralul, No. «. * B«vk oo the CMrt. eh. tt, pp. US, Ut.
668
COXSTITUTIOK OP THE ETKITED
[book 03.
being iaterponed againRt th« exercise of the moBt vindictive paa-
siona, wbile the humblest individual has a right to demand an
oath of fidelity from tboHo vho are bia peen and bts triers.
England, bon-ovcr, upon the trinl of impeachments, the Uuuso
Lords arc nut under oath, but only make a declaration upon their
hunor.^ This is a strutijre unomaly, as in uU civil and eriuinttl
trials by a jury the jurors am under oath ; and there 8c4.-ms no ,
reasou why a uiuetiuu equally obligatory up«>D the couscieaccs <
the triers should not exist in trials for capital or other uffc
before every other tribunal. What is Utcre iu tlio honor o( a peel
which neocssarily raises it above the huuorof a commoner?
ontHnaly is rendered still ntore glaring by the fact that a peer
cannot give testimony, as a witness, except on oncli; for here his
honor is not trusted. The maxim of the law in Auch a case is,
mjuJieio rum ertditur, nitijuralu.* Why should (he obligation
of a judge be less solemn than the obligation of a witnesti * Tta
truth is, that it is a privilege of power conceded in
timea, and founded on feudal sovereignty more than on justtcej
or principle.
§ 777. The a^st provision is: "Wh«i the President of the
Dnited States ia tried, the Chief Justice shall preside." Tbs
reason of this clause has twen already adverted to. It was tai
preclude tim Viee-Presideut, who might be supposed to have irfl
BBtura) desire to succeed to the office, from being iustnunental
in procurinc the conviction of the Chief Magistrate." Under
such circumstances, who could be deemed mure suitable to pre-
side than the highest judicial magistrate of the Union ? flis
impartiality and indcjM-ndence could be as little suspected as
those of any per^i^n in the country. Aud the dignity of his sta-
tion miglit well be deemed an adequate pledge for the p<wscssion
of the highest accomplishments.
§ TiH. It is added, "And no person shall be convicted with*
out the concurrence of two>tliirds of the members present." Al-
tJiougli very numerous objections were taken to ths Cuitrti itution,
none seems to have presented itself against this particular quo-
rum required for a conviction; and yet it might have been fairly
thought to bo open to attack on various sides, from its supposed
1 1 Bbck. Caran. MS ; 4 latL tt ; Z ElliM't IhibM**, S*.
• 1 Blnok. Camm. 403.
■ Baatt on CeoU- elk 21. p. 214.
CB. X.]
THE SENATE.
669
fe
theoretical inconroniencA and incongruity. It might have been
uid, with some plaiisihility, that it desert^ the general princi-
pleH even of courts of jiutice, whore a mere majority make the
deeininn, and of all legialativo bodies, where a similar rule is
adopted, and that the requisition of two-thirds would reduce the
IMwcr of im]>cuchmcDt to a mere anility. Besides, u]>on the trial
of impcnchmcutit in the House of Lords, the conviction or ac-
quittAl ia by a mere tnnjority ; ' (a) so that there is a failure of
any analofiy to support the precedent.
§ no. It does not i^pear from any authentic memorials what
were the precise grounds upon which this limit«tio>i was inter-
posed. But it may well be conjectured that the real grounds
were to secure an impartial trial, and to guard public men from
being oacrificAd to the immediate impuldea of popular resent-
ment or party predominance. In England, the House of Lordi,
from its very atnicturo and hereditary independence, furniahcs a
suAicient barrier against such opprMsiun and injuaticc. Mr.
Justice Blackstone has remarked, with manifest satisfaction,
that the nobility "have n^'ither tho same intercsta nor the same
paasiona oh |>i>[>ular assemblies ; " and that " it is pro|»er that tlie
nobility ahould judge, to insure justice to the accused; as it is
proper that the people shoiitd accuse, to insure justice to th©
commonwealth."' Our Senate is, from the very theory of the
Constitution, founded upon a more popular bsais; and it was
desirable to prevent any combination of a mere majority of the
States to displace or to destroy a meritoriouK public uQicer. li
a mere majority were aurTicleut to convict, there would be danger
in times of hifih popular commotion or party spirit, that the In-
fluenoe of the House of Representatives would be found irresist-
ible. The only practicable check seemed to be tlic introduction
of the clause of two-thirds, which would thus require an union
of opinion and interest, rare, except in cases where guilt was
manifest and innocence Hcareely presumable. Nor could the
limitation be justly complained of; for, in common coses, tlie
law Dot only presumes every man innocent until he is proved
< Can. Dig. PiriiMDHit, U IS, 17 ; S WoodcM^ Ltct Vi, g. «11
• « Bkck. CoDuo. Ml.
(a) A jadmmml of imtaM^BMat !■ lb«
Rowe ol LonU nqmira^ ho«r«T«r, that >t
IhM twdTB of Um nMnbcn ibould eonev
1b It i "* v«fdial br Irw Uisa t«dt»
would not bo good.' Con^D'a Digort, U
670
CONCTITUTIOK OP TDK UNITED STATES. [SOOK IIL
giiiltv, but unanimity in the verdict of the jury is indispeasable;
Here an intermediate scale is adopted between unanimity and a
mere Rmjoi-ity. Ami if tbe guilt of a public ofBcor cunnot ht
establiahed to the satisfaction of two-thirds uf a body uf hi^
taicnts and acquirements, which sympathizes vriUi tho people
and represents the States, after a full invest ipitiyn of th« facts,
it must be that tbe eridenco is t«o inGrm and too louse to justify
a conviction. Under such circumstAoceB, it would be far mure
coneunant to the notions of justice in a republic that a i^uiltr
person should escape, titaa that an innocent jicrson sliould lM.-con>e
the victim of injustice from popular odium or party combinations.
§ TSO. At the di^taucA of forty years, wo may look Itnck uf>oD
this reasoning with entire satisfaction, llic 8enat« has
fotmd a snfe and elTcctive depositary of the trial of impcacl
ments. Uitring tbat period but four cases have occurred requir-
ing Uiis high remedy. In tlirco there have been acquittaU, and
in one a conviction. Whatever may have been the opiaions of
xealotLi piartiHanit at the times of their occurrence, the sober judg-
ment of tbe nation sanctioned these resntts, at least on the side
of the acrjuitt^il.^, as soon as they became matters of history, re>
moved from tbe inimetliate influencK^s of the prosecutions- The
unanimity of the awards of public opinion, in \i» final action
these controversies, has been as great and as (laliHfactory as canl
be attributed to any which involve real doubt or enlist warm pre-
judices and predilections on either side.'(ii) No reproach has
■ Tlis trinii icn otludcd to wert of Witluiu Rloiiot in 1799, iif f>anian] Chw*
1863. of John I'itkBring in ISOl. Mid of Jirum H. Frck in IftSl. TIm Uiiw I
arc ulliul-J Id ill lUmU on tha Cao*t. ch. 23, p. SIS. So* •In t Tuck. Bhek. Conni.'
Siil, ii'it-.-i Id. Ai>|i. 57, »i>l d<awl» Joiuiialvof tlion*p*cUTs join. lUwU oaCoiitL.
L'li. $£. [>. lis ; SergHUit ou Corialitatimial Law, eh. 39, fp. 343. 304.
(a) Ttiv dniiiirr Ibut wawlon, tiitmrm men recent, iuvolring tbe Pr»«ld«n«T,j
M niirrMntHlivM of palttical {itrUn^ vilt
ht «w>T«d, nitMeioDiljr or unomxaoiudf,
hr coDtiikntioof tlut tbwM art iaBa*
putw (bviu, ia Diu«li grutor am the tn«1 of
■ itoLitkal officot Item who« raaoval oi
Mention f»ity adraaLie* nljitil bo m-
poctod Umu Ml thnt of k JudfttL .Tlib ra
(oTcilil; lllniLtratod Id lh« inifiMahniBnt of
PlMidcnl JohoMii, In wliicL, •K'uh t, low
•Kfiptioni, Muaton ilindod oa ibe ifota-
tkin of gqllt nriottr xsording to thoir
political aOtiiUk*. Anil ■notiwf IndaDo*,
Ihongb Mt ui iarpnirliitinnl, oit^hl
mtnlioned. Tba State of Srm Yu
Moka lo pnvDDt «wJi navlta bjr pi«*U
ing tiMt tht judgB of tlin Court of Ap- '
pnda xhnll conrillntii a |art of tb* cikuI
at Iwprachtiirnt. In H>m< nva nrh an
tlamrat niiglit bi of innalmUble valur ;
bnt ths instanoc lut nfarad to (ottad
fall nnlidcnin In Ibt abltiiy of Ju
tttMnKlral— aian JndRlM ot tba b^a
chataotir — tu wl, whmi Uu Blraiii
l<any b Mvenr, inllioUt ngard to thalr
CH. X.]
raB SBKATC.
5n
orer reached the Senate for ita unfaithful discharge of theae higli
functions; and the voice of a State has imrely, if ever, displaced
a siQfflc aonator for hie vot« on such an occasion. What nioro
could bf aski-d iu the progress of any ^ovcrniiK'nt ? ^\'ha( more
could uxpcriencv prwduuo to justify confidence in tJie institution ?
§ 7«1. Tlic Hcxt clauiw is, that "Judgment in cases of iin-
]>vachmcnl shall nut extend further than to removal from oftioe
and diiuiuuliricntiou to hold and enjoy any office of honor, trust,
or protit under the United States. But l)»e party convicted shall
iiovcrthcli-ss he liulilc atvi subject to indictwcut, trial, judgineDt,
and punishment, according to law."
§ 782. It is obvious tliat, upon trials on impeachments, one of
two courses must bo adopted in case of a conviction: cither for
the court to priK-erd to pronoiuice n full and comjiletc sentence of
pimishmcnt for the offence, according to the law of tlio laud in
like cases pending: in ttio common tribunals of jitstie*^', superad-
ding the removal from offire and the consctjucnt dliuibilitivs; or
to confine its sentence to tlic removal from oHioe anct other disa-
biliticA. If (he former duty Ijc a part of the coustitutiouul func-
tions of the court, then, in case of an acquittal, there cannot bo
onoibcr trial of the party for the same offence in the common
tribunals of justice, hocausc it is repugnant to the whole theory
of the common law that a man should bo brought into jeopardy
of life or limb more llian once for tho same offence,' A plea of
ac(]uittal is, therefore, tfn absolutu bar against any second pron-
ccution for the same ofTence. H the court of impeachments is
merely to pronounce a senteneo of removal from olTice and tlic
other disabilities, then it is indispensable that provision should
be made that Ihe common tribunals of jui^ticc should be at liberty
to entertain jurisdiction of the offence for tlie ])uri)o«o of infUct-
ing the common punishment npplicablo to nnofhcial offenders.
Otherwine, it might l>o matter of extreme doubt whether, con*
sistently witli the great maxim above mentioned, established for
the flocurity of the life and limbs and liberty of the citizen, a
cond trial for tlie same offence could he hod. either after an
fuittol or a conviction, in Ihe court of impeachments. And
I t Blwk. Coaiu. 3S5, 3fl1 ; HbwIl P. C, B. S; cli. Si.
partjr alBlbtloit*. It ironUl bo » calBinltjr
of tha hl)^c*t Moment it Xha (nenleiit
•heaU b* wt of Um coavUtloa •ad n-
nonJ ef tht Pmliltot «a • putiain reVf,
■»1 Ml fTODDdt Ddl wnetloanl liy Um lobar
MOM ud MkUin nlUcdoB of Uia ptofls.
572
CONSTITUTION OP THE tntlTIH) STATES. [BOOK ITI.
if no such aocond trial could be had, then the fiTm9n»i officii
ofTendors mi^ht eacapo without anj subatantial punitihment, evoil
for crimvs which would subject their fellow-cititetui to cttpitat]
punishment.
§ 783. Th« Constitution, then, having provided that jDd|
upon impouchmcnts bhnll not cxtonil further than to removal
from office and diaiiualirication to hold oflice (which, however
affiictire to UD ambitious and elovatud mind, would be Marcelf
felt *B a puniftltuicnt by the proftif^Us and the bose), has wisely
subJMtvd tlic party to trial in the common crlmtnal tribunals,
for the ptu-jxwe of rcc«iving such puniiihmcnt a« ordinarily lie-
longs to the oETcnce. Thus, for instance, trvaaon, which bjr oar
laws is a capital offence, mar receive its appropriate punish-
meiit; and bribery in high oflicers, which otherwise wmtld be a
mere disqualificntion from office-, may have the loeaiturc of its
infamy dealt out to it with the same unsparing severity which
attends upon other and humbler offenders.
% 784. In England, the judgment upon impeachmcuts is not
oonfinrd to mere removal from office, but extends to the whulo
punishment attached by law to the offence. The House of Lords,
therefore, upon a conviction, may by its sentence inflict capital
puniidiment, or perpetual baniRlinifnt, or forfeiture of goods and
land^, or line and ranflom, or impriaoument, as well as remo^'al
from office and incapacity to hold office, according to the nature
and aggravation of the offence.*
§ 185. As the offencea to which the remedy of impeachment
has been, and will continue to be, principally applied arc of a
|)otittcal nature,* it is natural to suppnuto that they will be often
exaggerated by party spirit, and the prosecutious be sometimos
dictated by party renentnienta, as well as by a sense of the public
ptod. Tlicre is danger, therefore, that in cases of conviction
Ihe puniHhmont may be wholly out of proportion to tJie offence,
and prctiscd as much by popular odium as by aggravated crime.
From the nature of such offences, it is impossible to fix any
exact grade or measure, cither in the offenrfs or the punish-
ments; and a very larpe discretion must unavoidably be vested
in the court of impeachments as to both. Any attempt to define
the offences, or to ufEs to uvery grade of distinction its appropri-
> Com. Dig. FutbwMnt, I. 14 ; 8 WotWbMO, LwL 40, i^l tU to eii.
• s WoodMm, Ltct », pp. eoi. eot.
CM. X.J
THE SEXATB.
sn
ate meftsnra of pnnishment, wwild probablj tend to more injustice
ajid InooDTenience thnn it wmitd correct, Mid perhaps would ren-
der tlie power at onoe inefficient and unwieldj. The discretion,
then, if confided at all, being peculiarly siibjeet to abuse, and
ooanectiDg itsolf vith State parties and State contentions and
State animositieit, it was deenuid most advisable by tJio conven-
tion that the power of the S^^nattt to inflict pnnii«bnient should
merely reach the rit^bt and qualifications to ofiice, and thus take
away the temptation in factious timra to sacrifiDe good and great
men upon the altar of party. History had sufficiently adnion-
istK-d thtfm that the power of im[M.>uchnicnt had be<?n thus niis-
ohio'ously and inordinately applied in other ages; and it was
not safe to disrc^rd those lessons which it bad left for our in-
struction, written not unfrequently in blood. Lord Strafford, in
the reign of Charlc« the First, and Lord Stafford, in the reign
of CharlcH the Second, were bi>)h convicted and punished capi-
tally by the ilunsc of Lords; and both hare been suppo«ed to have
been rather Yictims to the spirit of the times tlian offenders
meriting such high piinishments.' And other easi^ have oc-
curred, in which, whatever may have )>een the demerits of the
accused, his fitutl overthrow hats been the result of political re-
sentments and hatreds, far more than of any desire to promote
public justice.*
§ 786. There is wisdom and sonnd policy and intrinsic justie«
in this setmralion of the offence, at least ao far as tlie jurisdic*
lion and trial are concerned, into its proper elementa, bringing
the political part under the power of tbe political department of
the government, and retaining the civil part for presentment and
trial in tbe ordinan,- fomra. A jury might well bo intrusted with
the latter, while the former should meet its appropriate trial and
punishment before the Senate. If it should l>o asked why sepa-
mfe triala flhoiild thus bo suoocasively had, and why, if a convic-
tion should take place in a eonrt of law, that ooart might not be
intrusted with the power to pronounce a removal from office and
flie difuiualification to office as a |inrt of its aeotenoo, the answer
has lieen already given in th(^ reasoning against vesting any court
of law with merely political functions. In the ordinary counte of
the admiuistratjon of criminal justice, no court is authoriEcd to
> B««fa on Ik* CoMtitMiim. di. SI, ]i.SlT; 1 WemlMoti, Lwt *0. pf. «IM, MP.
• Com. Dig- ParUuiwil. L. 28 to W ; 9 WoodMon, l.n;t. iO, pfit •)», S30.
674
OONSTITtmOK OP TOR UMrTED RTATES. [BOOB 111.
remove or dj^iunlify nn offender as a part of its regular jixlg-
in«nt. If it requite at all, it renultfi as a consequence, and not
as a part of the sentence. But it may I>e properly u^^od, that
the venting of aucii a high and delicate power to be exercised by
a court of lav at its discretion, would, in relation to the distin-
guished fimctionaries of the povcrnnK-'nt, bt- p«?culiarly unfit and
inexpedient. What could be more cmbarriuising than for a court
of law to pronounce for a removal upon the mere irruund of
political usurpiition or malversation in ollicc, admittinif of end-
k'Sfl varieties, from the Bli^ktest ^ilt up to ihc most l^aKrant
corruption ? Ought a Pr<?8ident to bo removed from oBice at tbo
mere will of a court for political misdemeanors ? Is not a politi-
cal body, like the Senate, from its superior information iu regard
to executive functions, fur better quulirmd to judf^ how far the
public weal mif^t bo promoted by bucIi a punisluncnt, in a given
case, than n mere juridical tribunal ? SuppusiL- the Senate should
still deem the judgment irregular or luijustifiublo, liow is thft:;
removal to take effect, and hovr is it to be enforced ? A aepara^
tioR of the removin); |>owcr altovrether fi-ora the ajipoinling |M>wcr
might create mam- practical diilicullie^, which ought iiol, uxecpt
upon the most urgent reojtons, to bo introduced into mutters ol
govemmcttt. Without attempting to maintain tlmt the diflicul-
tics would be in8U|)erable, it is sufbcioiit to sliow thiit Ihey might
be highly inconvenient in practice.
§ 787. It doi>8 not appear from the Journal of tlic Convention
that the provision tliiis limiting the sentence upon impeaehmcnts
to removal and disqualification from oflioo attntcled much atten-
tion until a late period of its deliberatiotw.* Ilie adoption of it
was not, however, without some difference of opinion, for It
passed only by the voto of seven States against three.' The
reasons on which this opposition was founded do not appear;
and in the State conventions no doubt of the propriety of the
provision seems to have be^-n seriously entertained.
§ 788. In order to complete our review of the constitutional
provisions on tJio subject of impeachments, it is neoessary to aa-
certain who are the iwrsons liable to bo impeached, and what
arc impeachable offeoocs. By some strange inadvertence, this
■ Jouni*! ot Ihe Connntioii, -pp- 337i 90S, 8U.
* Jonmal of ih* CoavtatMiii, |i|>. !S7, S02. Sn 8 EUiaf* OebtM^ 13 M «« ; Id. U
to S7 ; Id. 1«7, lOS.
I
CB. X.]
675
part of tbe Oonfltitutton has been taken from its natural connec-
tion, and wtdi no ^rcat propriety arraiigcd under that head which
emhru»;8 the or^nlzatioa and rights and duties of the executive
department. To prevent the necessity of ac;aiu reeurrinir to this
subject, tJio fronerul mvthod proscril>cd in these commentaries
will in this instanco bo departed from, and th« only remaining
pTOTision on impeachments be here introduced.
§ 789. I1i« fourth tw-ction ol the second article is as foMoirg:
"11)6 I*r«sidcnt, Vice-President, and all civil officers of the
United State*, shall be removed from ofHce on itnfioaehment
for, and conviction of, treason, bribery, or other hi;;h crimes
and miftdemeanora."'
§ 790. From this clauiie it appear* that the remedy by im-
peachment is strictly confined to civil ofliocra of tlic Unitvd
Stateii, including the President and Vice-President. In this
respect it differs materially from the law- and practice of (Ireat
Britain. In that kindirom, all the kinjf'a subjects, whetlter (lecn
' oommonerB, are impeuchablo in Parliament : thou(;h it is as-
cd thai commoners cannot now be impeached for capital of-
but fur misdemeanors only.' Such kind of misdecda,
itowerer, as peculiarly injure the commonwealth by the ab«iite of
high ofHoes of trust arc the must proper, and have hoei) the most
nsoal groonds for this kind of prosecution in Parliament^ There
fleems a peculiar propriety, in a republican irovernment at least,
in oonfininf! the impvachiuj^ power to persons huldinj; office. In
aocb A government all the citizens arc C([unl. and ou):ht to have
th« same security of a trial by a jury for all crimes and offences
laid to their charge, vhcn not holding any olficial character.
To subject them to impeachment would not only Ive extremely
oppressive and ex))eiisive, but would endanger tlieir lives and
liberties by exposing them against their wills to pcraecntion (or
their conduct in exercisinir their political rights and pririlegca.
Dear aa the trial by jury justly is in civil cases, its value as s
protection against tbe reacntment and riotenec of rulers and
factions in criminal prosecutions makes it ineatimsblc. It js
* In the rMiv«ntl««>, lh«(UnMiBttklD9 th* PntUnit IkUs taimoval rroaolltoran
bniwMihaMDt ami ocniTiciion wu not luwoimoualjr agntd la | bat paiaed bj « vot« of
ei^t Statts igdMl two. Jovnal of Cmit*Dlic«, |ip. 01, 194, S11.
^ * 4 Black. Oamm. SM, and Chrirtiui'i Kote ; 2 WoodanD, L<Ki. tO, p. 001, Ac ;
^m Con. IM*. pNiUamiMt, U SS l» 40.
^1 ' ] WmxUmd, Ucl to, pp. Wtl, 802.
670
C0N8T1TIJTI0S OP HIE OKITED BTATFa. [BOOE 111.
there, and there onlj, that m cUisen, in the srinpatliy, the im-
pftrtislity, the intelligence, and incorruptible intcgritjr of hia
fellows, impanelled to tr>- the accusation, may imlui-^o a well-
foiindcd poiindenoe to sustain aiid eheer him. !£ ho should cliuuM
to accept offiee, he would voluntarily incur all tho additional
r08pon»ibility growing out of it If impeached for hia condnct
while in oRice, he could not justly complain, since ho was phiCfd
in that predicantent by his own clioice; and in accepting oOtcc
he Bubmitted to all the consequences. Indeed, the moment il
was decided that tho jiidj^ent upon impeachments should be
limited to removal and disqualification from oflice, it followed,
as a natural result, that it ought not to reach any but ofTiccra of
the United States. It fleems to haTo been the orifrinal object of
tho friends of the national government to conrme it to these
limits ; fur in the original molutions pru|>o«cd to the conrcn-
tion, and in all the 8iibtMM|uent proceedings, tho pover won ex*
prcHsly limited to national officers,'
§791. Who are "civil officers," within the meaning of this
const i tut ion nl provision, is an inquiry which naturally presents
itself; and the answer cannot, perhaps, be deemed settled by
toy solemn adjudication. The term "civil " has various signifi-
cations. It is itometimes used in eontrudixtiitetion to harharw\
or tava^jt, to indicate a state of society reduced to order and rcg>
ular government 'ilius, we speak of oivil life, civil society,
civil government, and civil liberty, in which it is nearly eqatr-
alent in meaning to /Mftt/ca/.^ It is sometiines uncd in contra-
distinction to criminal, to indicate the private rights and retoedicB
of men as merolierR of the commuoity, in contrast to those which
are public, and relate to the government Thua, wo speaik of
civil process and criminal (Mxwesa, civil juriadictiiHi and crimi-
nal jurisdiction. It is sometimes used in contradistinction to
military or eceleritutieal, to natural or foreiffn. Tlins we speak
of a civil station as opposed to a military or ecclesinstical ata-'
ti(Mi; a civil death as opposed to a natural death; a ciril war as
opposed to a foreign war. Tlie sense in which the term is used
in the Constitution seems to be in contradistinction to militari/.
1 Joonul of Cnnvtstioa, 0, 131, 137, atS.
* JotuiMii-a Dieliaauy, Omi: 1 Black. Conwk, «, Ittf. SSI ; MontMf. SpWl el
La<ti^ B. 1, <A. S 1 Ruthxffotili'i tntt. B. S. ch. 3, p. 3S ; Id. ek S, p. 31 ; ]<L oh. S.
p. SW i Heiikfe. Ktrai. Jurti N*t. B. 2, di. 4.
m SiNA-nL
577
»
I
to indientc the rig:hts aiid <lulip» relating to citixeng generally, in
cuntrudiBtinction to tboae of pomons engaged in the land or
tiural mrvicc o{ the government It is in thiH aenm that Black-
stonv Hpeaks of tho luity in England an dividod into three diatinct
xtatM; the civil, tho mililary, and the maritiraoj the two latter
«mhracing tho land and naval forces of the govoramcnt' And
in the sajHC sonae tho (.-xjieDsofl of tlie civil list of oRiccra are
8|>okcn of in cuntradistinc^tion to those of tho army and navy.'
§ 792. All oiTicvrs of tho United States, ihoroforc, who hold
their a|»)><iintnicnt:t nndcr tho national government, whether their
duties arc ex«ciilivc or jiKlicial, in the highest or in the lowest
departments of the government, with the exception of officers in
the army and navy, are |iro|}crIy eivil ollieors wtlhin the meaning
of tlie Constitution, and liable to iniiK-iiohment* The reason
for excepting military uid naval oflicent is, that they are stibjcct
to trial and puniRhment according to a peculiar military code,
the laws, rules, and usagni of war. Tho very nature and effi-
ciency of military dutien and diaeipline require thin dummary
and excluaire juriiuliction; and tho promptitude of ita opera-
tions is not only liettcr suited to the notions of military men,
hut they deem tlieir honor and their reputation more safe in tlie
hands of their brother officers than in any merely civil tribunal.
Indeed, in military and naval- affairs, it is «]uite clear that the
Senate could scarocly posaesa competent knowledge or experience
to decide upon the acts of military men ; so nmch are tliesc acta
to be goromod by mere usage and custom, by military discipline
and military discretion, that the Cunslitiition has wisely com-
mitted the whole trust to the decision of courls-martial.
§ 793. A question arose upon aji {m]>eachm«nt before the Sen-
ate in 1799, whether a st^'nutur was a civil ollicer of the Unitvd
States, within the purview of the Constitution; and it was de-
cided by the Senate that he was not;* and the like principle
must Apply to tlie inembera of the tlouite of Iteprcitentativ-es.
This decision, u|Mn which tlie f>enate itself waa greatly divided,
< 1 Biuk. Comm. >»«, IDS, 417 ; IW tiitim. B. % ch. 17. p. 1(8.
* t HUok. Oomm. 83X
■ IU*le on the OonMitalioa, eh. S3; p^ 913.
• Th«<l(<ukinwuiiudobjBTaUari«*euiiat II. See Senate Jonraal, IMi Jmo-
>fy, 17M : I Tneker'* Bbdc Comn. App. K. U ; [U»l« «■ C«iu>t eh. SI, pp. 11 S,
Sl(.
TOL. 1. — 87
ibAi
078
CONSTlTCnOS OP THE USITED STATE8. [bOOK in.
■eenu not to have been qiiil« satisfaotoiy (u it m&y bn ^thered)
to the minds of Home lennied commentators.' The reasoning by
which it was titistaincd in the >!enate doett not appear, their tle-
liberatinns baring been private. But it waa probably held that
"civil officers of the United States" meant such aa derived their
ftppoiiittncnt from aud under tlic national government, aiid not
(koKC pcnwna who, though uiomber« of the government, derivedj
their appointment from the States, or the people of the HtatM
In this view, the enumeration of the Hrcnident and Vice-Preni-
dent, as impeachable oflicera, was indispensable; for they derive,
or may deri^'C, tlieir oiHcc from a soiiroe paramount to the na-
tional gOTcmmeot. And the clause of the Constitution now
under considemtinn does not even affect to conaider them offiwra
of the United States. It says, '*the l^-esidont, V ice-Pr^'sident,
and ail itivU officers (not all ot^irr civil tdhcers) ahall be removed,"
Ac The lanjriiage of the claume, therefore, would rather lead
the conclusion tJiat they wer-e enumerated, aa contradiHiingiiialie
from, rather than aa included in the deacriptian of civil officers
of the United .States. Other rlauHes uf the Cunstitulion would
seem to favor the Hsme result, particularly th« eluise respecting
appointmcDt oi officers of the CFntted States by the executire,
who is to "commiiMiun all Iho ofttcers of the United States;"*
and the sixth section of the first artielu which declares that "no
person holdinif any office vtnder the United States shall be a mem-
ber of cittHT house during kit continuance in office ; '* and tlie lirBt
section of (he second nrticte, which declarer that "no senator or
reprcsciitiifive, ur pernon hotdinff an affiee of trtut or profit under
the United States, shall ho appointed an elector."* It ia far
from being certain that the convention itxelf ever contemplated
that sointont or representatives should be snbiected to impeach-
ment;^ and it is vei-y far from being clear that sucJi a subjixniun
would have been either politic or desirable.
§ 794. The reasoning of tJie Federalist on this snbject. in ao-
lir to sumo objections to vesting the trial of impeachments in
tie Senates does not lead to the conclusion that the learned an-
I I Tnck. Blark. Comoi. App. S7, 98 ; Bawl* on CansL lA. tS, pf>. £13, 314, 31S,
219.
* Sm Bloiura Ttkl, p|L S4. SS : Id. 4». SO. SI, St.
• S«l aeo Smth Cuoliu DcUtot on the Ooutlutioa, JnuUT. 1788 (printtd th
dwlMMu, 16S1). F^ 11, 13, 18.
CB. X.]
niR StStATE.
«K
tlior Uioiight the soDatorB Mahh to impeschment. Some parts of
it iroiiM rnth«r lucHuc the oilier way. "Th« convention might
with propritig," it is Biiid, "hare meditated the puniahment of
the executive for n dcviutioti from the instructions of the f^enate,
or ft wank of integrity in tite coutluet of the nci^^utiutiona com-
mitted to him. Thoy mig:ht aIho have had in view the puniah-
m4>nt of n few lending individunU in the Henatc. who ahoald have
prostituted their iiitluence in Ihut hody as the mi-re>enary instru-
menta of foreign corruption. But they could not with more, or
with e>r|ua1 prrtpriety, have contemplated the impeachment and
punishment of two-tliirds of the Senate conacnting to an im*
proper treaty, than of a majority of that or of the othtr hraKch of
th*< ln'jitlalure conflenliiig in a iMrniciouR oruncnnitlitiitionnl law,
a prittciplr. tehieh-, I Mierr, hat n<rr«-r bt-tn admitted into tinif i/ov-
emment," etc. "And yet, what reason is there that a majority
of the IIouso of Rrprew^ntativosi, aacrificing the intepeata of the
society by an unjiuit and tyrannical act of legislation, should
escape with impunity, more than two-thirds of the Senate sacri-
ficinji the sumo interests in an injurious treaty with a forei^
power? The truth is, that, in all sueh cases, it is essi'ulial to
the freedom and to the necessary independence of tJie delibera-
tions of the body, that thf mt-mlierM of it ahotilJ f>e exempt /rmn
puni»hment for aett done in a colUetitK capaeitif ; and the secur-
ity to the society must depend on the care which is taken to con*
fide the trust to proper bands, to make it their Interest to execute
it with fidelity, and to make it as diflieuU as |>>MsihIe for them
to eomhino in any interest opposite to that of tlie public good." '
And it is certain thut, in some of the State conventions, the
members of Coti^^ss were admiltod by tlie friends of the Con-
Blitution not to be objects of the imiieaching power.*
§ 795. It may be admitted that a breach of dnty is as repre-
hensible in a legislator as in an executive or judicial officer ; but
it does not follow tiM the sante remedy shouhl be applied in each
caae, or tluit a remedy applicaUe to the one may not be unJit or
inconvonient in the other. Senat«ni and reprew-ntatives arc at
short periods ma<ie responsible to the people, and may be rejected
by them. And for personal offences not purely political, they arc
responsible to the common tnbunals of justice and tlie laws of the
t Th* Foknlul, Ko. 6S.
■ > UM'* DiUtM, tS, tt, tS. la. Ml, ST.
CONtiTITtrriON' OP TUK DKITED flTAT^. [BOOK ItL
land. If a member of Congreu were liable to be impeached for
conduct in his legislative capacity at the will of a majority, it
might furnish many prtrtcxU for an irritated and prtNlomiaant
faction to destroy the character aiid intercvpt tlic iuflueucc of the
widest and most exalted patriots, who were rmistinfir their opprcs-
iuonn or develo|jinir their jiruHigacy. It is, thcix-fore, with gn-at
reason \irgcd that a legislator should be above all fear and inllu-
euce of this sort in his public conduct. The impeoclimeDt of
a IcfinBlator for bis oITioiul acts has hitherto been nnacknowledg
as matter of right, in Uic atinals of England and America,
silence of this sort is conclusive as to the state of public opinioD in
relation to the impolicy and danger of conferring thn power.'
§ T9ti. Tlic next inquiry is, what are impeacbable offencea L
They are " treason, bribery, or otlier high crimes and misdeme
ors." For U»e detiiiition of treason, resort may be had to the Con-
stitution it»elf ; Imt for tlie definition of bribery, resort is naturally
and necossarily had to the common law ; for that, as tlte commoB
basis of our jurisprudence, can alone furnlali the proper expo«ition
of the nature and limits of this ofTcnoe. The only practica] que*-
tJon is, what are to l>o deemed high crimes and misderaeanoiB ?
Now, neither the Constitution nor any statute of the United State*
has in any manner defined any orinn*, except trea-san and bribery,
to be high ciinies and niisdcmeaiiois, and as such ini|ieai'liablc.
In what manner, then, are they to be ascertained ? Is the silcnoe
of tlie statute-book to bo deemed conclusiive in favor of the party
until OongretiA have made a legislative deelaration and enumera-
tion of the offences which shall be deemed high crimes and inii>
demeanors? If so, then, as has been truly remarked,' the powor
of impeachment, except as to the two cxpa-sned cases, is a oou-
picte nullity, and the party is wholly dUpunisluible, however enor-
mous may be bis corruption or criminality.* It will not be sufTtcient
1 Tha upimcnu ot caanm}, tor tad agiinii a wnatiir't b«lag «a (mpmehabU oSi
will 1w found M lurgn In ili« |daUd trial of WiUian Uouat, M kii inptaduBMil
fVWUi. 17M).
■ Bawlv oa Ui« CanMitntiMi. A. tB, (h ITS.
• Upon tbc trial of Mr. JtMka ChaM, 111 18M, It ■ntoaUMdad inUtaimnrni
(Ic/mc*, ttut no dTi] olBcn wu lnlpMd■•U^ but " t«T trwMD, bribny. oa(Tii|itun, nr
»tm» liigli aim* or nladniMnor <muiiliaj tn amw att iimt cr «iaUted te vialatiim ^
lave ferbtdding or oaminaiMUng U." " Hcii«c It cleuly nanll^ that iw d*il oSear bI
the Ciillol Stala oui be impcachTJ, cxcspt (or MfOM tMeaat for aiiM) ba may W
ladktail at law ; and that no eridMM can be t«M>l*«d an au bn[>aMhRwM. ck*|>i nick.
C». X.]
THE BIWATK.
581
to say that, in the cotioa where any offence in puniahcd hj ftny
statute ot the United States, it may and ought to be deemed an
itnpvaehablc offence. It is not every offence that by the Constidi-
tioD is »u impeachable. It rouAt not only be an offence, but a kiffh
crime and mi»dcmeunor. Besides, there are many most flagrant
offence* which, by tlie statutes of the United Stntes, are piminha-
ble only when committed in apccial places and within peculiar
jurisdictions, as, fur instance, on the hi^i seas, or in forts, navy-
yards, and ar»cnal« coded to the United States. Suppose Die
offence is committed in some other than these privileged pluees, or
under circumstances not reached by any statute of the United
States, would it be impeachable ?
§ 797. Again, there arc many offences purely political, vhich
bare been held to be within the reach of parliamentary im|)eacb>
menls, not one of which is En the slightest manner alluded to in
our statute-liook. And. indi-cd, political offences are of so ™rioiiB
and complex a character, ko utterably incapable of being defined
or classilied, that the task of positive legislation would be imprac-
ticable, if it were not almost absurd to attempt it. What, for in-
stance, could positive legislation do in cas'^s of impeachment like
the charges against Warren Hastings in 1788 ? Resort, then, must
had either to parliamentary practice and the common law. in
^Ordcr to ascertain wtiat are liigh crimes and misdemeanors, or the
vholo subject must be left to the arbitrur}- discretion of tlic Senate
for the time being. The latter is so incom|uttihle with (he geiiiu»
<if our institutions, (hat no lawyer or statesman would l>e mcline<l to
|«ount«nance so aI)solute a despotism of opinion and practice, which
[might make that a crime at one time, or in one penion, which
[would he deeniiMl innocent at another time, or in another person.
■ Tlie only xafe guide in such cases must Im> the common law, which
is the guardian at once of private rights and public lilicrtics. And,
however much it may fall in with the politiral theories of certain
statesmen and jurists to deny the exi8tenee of a common law be-
lon^png to and applicable to the nation in ordinary cases, no one
ihas as yet been l>o)d enough to assort that the power of impeach-
Fment is limited to offences positively deRned in the statute-book
of the Union as impeachable high crimes and miRdemeanors.
Hi.oB HI indicbnait at kw far Um aune oSbnot, vo«1d be ulniiMblit.'' 1 C)M*e'*
THtl, pp. 47, IS. Tba matt iotOiat n« incited on bf Ua ewnuoL 3 Chue'*
m
CONSTITUTION OP THE 01(1X13) eTATIS. [BOOK nt
$ 798. The doctrine, indeed, would bo truly alarming, tliat the
commoa law did Rot regulate, interpret, and oontml the powera
and duties of the court of impftachmcnt. ^Vhat, othf^nriiie, vaald
become of the riilea of eridenco, the legal notionn of crimes, and
the application of principles of public or municipal joriaprudence
to tlie charges against the accused ? It would be a most extraor-
dinary anomaly, that while every citizen ni every Stale ori^nally
composing the Union would be cntitli.^ to tbv common law as his
birthright, and at once his protector and guide, sa a citizen of
the Union, or an olTiccr of the Union, he would be 8ubj<.'vt«d to
no law, to no principles, to no rules of evidence. It is the booot
of English jurispnidcnoe, and without it tlic power of impcach-
mcul would he an inttilurable grievance, that in trials by impeach-
ment tlie law differs not in essentials from criminal prosecutions
before inferior courts. The same rules of evidence, the soma
ic^al notions of crimes and punishments, prevail. For impeach-
ments are not framed to alter the law, but to carry it into more
effectual execution, where it might be obstmcted by the influence
of too powerful delin(|uent«,or not easily discerned in the ordinary
course of jurisdiction, by reason of the peculiar quality of the
alleged crimes.' lliose who believe that tho oonunon law, so far
as it is applicable, constitutes a part of the law of the United
States in tlieir sovereign character as a nation, not as a oource of
jurisdiction, but as a guide and check and expositor in the admin-
istration of the rights, duties, and jurisdiction conferred by the
Constitution and laws, will find no difficulty in affirming the same
doctrines to be applicable to the Senate as a court of impeach-
ments. These who denounce the common law as having any
application or existence in regard to the national goreniment
must he neccissarily driven to maintain that the power of impcodi-
ment is, until Congress shall legislate, a mere nullity, or that it
is despotic, both in its reach and in its proceedings.' (a) It is
romarkubic that the Jirst Congress, assembled in Octolier, 1774,
in their famous declaration of tho rights of tho colonics, asserted
I a WoaUwn. Lect 40i pf. SI I. SIS ; 4 BUek. Comin. Sai, CtiritUtn'* Kote (1).
* It i* not mj itiiiiB in tidt |ittM to •KM' upon tlia diaraaiioa of the niadi.oaalfD-
ttnei qttMttoD, wiMthar tli* commoa law waitilaMB ■ put of the nAtlnu/ jnrbpcn-
itnee, tu «>)i)tr»dutiti(.'lii9a to lliat of the Statn. Tht Utnoi miler sill bnO tke inb-
joet amflf dbeawd in Uw wotiu to tthkh be Iih btsn alntdy rrttttnt, Dtowly, I
(n) 6^ VriMton I-. PnUn. 8 Fct »l : KcndaU >. Dntl«t SUIm, 1£ Pot. «8(.
CH. X.]
THE SEKA71L
588
" that the respective coloniea are entitled to the common Inw of
Enfi;land, and that (hey are entitled to the benefit of such of the
Eiijzlifih statutes as csititcd at the time of their colonixation, and
wliich thi'j have by experience respectirelj' found t*) iw applica*
blc to thoir HCvcral local and otht'r circumstances." ' It irouM be
ningular cooiigli rf, in framiu); a national ^vernmi>nt^ that
common law, eo jiuitly dear U> the colonics as their guide and
protection, should cuaae to have any cxistenvo, aa applicable to
tlic ()Ovn.-r», ri^hfs. Mid prinl^«« of tho people, or the obtigationB
and dulii'ft und powers of Ihc dcpartmouls of the national gorem-
mcnt. If tiie common law has do existcnco as to the Union as
a rule or fpjide, liie whole proceedings arc completely st the
arbitrary pleasure of the govcmmcot awl its functionaries in all
its departments.
§ 7l'y. ('onprsB have unhesitatingly adopted the conclusion
that no previous statute is necessary to authorise an impeachment
for any otiicial misconduct; and the rules of proceediu);, and the
rules of efidence, as well as the prinrJples of dcctsiun. have been
uoifonnly reptlatcd by the known doctrines of t)ic common law
and parliamentary ueago. In tho few cases of impeachment which
bav« hitherto been tried, no one of tb« charges has rested upon
any statutable misdemeanors.' U seems, then, to be the settled
doctrine of the high court of impeachment that, (hough the oom-
juoo law caimot be a foundation of a jurisdiction not given by tho
Constitution or law«, that jurisdiction, when given, attaches, and
is to be exercised according tt> the rules of the common law ; und
tltat what are and what are not high crimes and misdeuManore
is to be ascertained by a recurrence to that great basis of Arueri-
can jurisprudence.^ The reasoning tiy which the power of tho
House of Ropresentatires to punish for contempts (which ore
breaches of privileges, and offences not deGned by any positive
TMe. Dluk. Ccnm. App. Km* R, ji. in, «to. ; la Ui« npoct of Xhr Virginia Ltgiik-
tawaT l7MllsnO;iDft«at«i«tbtConilit.cli.Ml p^SU, Ha. : and ia UuponMAUM
Jiit1«Iitlion, and IIif (othoritiBi theiv nted. 1 Kant,ConuD. Lcet. It, p. ail, 'I Mf. ;
Vorth AnnicoM Bctmw, Jatjr, Ittl : Mr. Dijird'* i^ifoth, DvUt* on tli« Jitdicknr {«
1802, p. 171
> 1 J«anu) of Omgiftt, 0<rt. 1774, p. M.
* tl Mwy la tuiipoial llial file lint cbarga in IIm mlclM of biipcMkuMt tflalntt
WillfaBi HloiiBt wu ■ UalataUi) ollnrn ■ tmt on an accurau oitMiBallon nfiba Mt oT
Qm^ptm of 1761. ii will be (onml not to ban beta ■«
■ Sea JrHnaani lluoal, f 53, titla. tmftadkmail; Blo«irt'tTrinlon trnpoMttnunl,
pp. S» to SI i Id. » to M iPUlMUIpUa. ITM). B«t aee Id. pp- *> t" *<- la
564
COSSTITtmOS OF THE UNITED 8TATKS. [BOOK IB.
laws) him been iiplield by the Supreme Court, sttnds upon simiUr
grounds ; for if the Hwise had no jurisdicttuD to piinUli for oao>
tempts until the acts had been pre^iouslj dufiuvd ttud ascertained
by positive law, it is clear tbut the proceu of arrest would be
illegal'
§ 800. In examiniDg the parliamentary hiKtory of impeachmenia,
it will be found thut many offences, not easily deiiuable by law,
and many of a purely political character, have beco deemed high
crimes and raiisdenieftnors worthy of this extraordinary remedy.
Thoa, lord chancellors and judges and other magistimles bare
not only Wen impeached for bribery, and acting grossly contraty
to the duties of their office, but for misleading Uicir sorcrcign fay
unconstitutional opinions, and for attempts to subvert the funda-
mental laws, and introduce arbitrary power.' So, where a lord
chancellor has been thought to have put the great seal to an ig-
RominiooB treaty, a lord admiral to liave neglected the safeguard
of the sea, an ambassador to hare betrayed his troat, a privy
cooncillor to have projinunded or support^ pernicious and di^
honorable measures, or a conRdential adviser of his soTereigo to
have obtained exorbitant grants or incompatible emploi'meDts,^
the»e hare been all deemed impeachable offences.* Son>c of the af*
fences, indeed, for which persons were impeached in iJie early sgas
of British jurisprudence, would now seem harsh and serere ; (a)
but perhaps they were rendered necessary by existing corrnptioaa.
and the importance of suppressing a spirit of favoritimm and court
intrigue. Thus, persons have been impeached for giving bad
counsel to the king, advising a prejudicial peace, enticing the
king to act against the advice of Parliament, pnrchasiDi; officeSt
giving medicine to the king without advice of physicians, pr^
laotbr cUiM oT tb* CMiUaiUMi. pown- k gjnn to Uie Praddtnt l« p*al i*|«t«*w aad
paidoBi />r ^0mm ogonrt lit OMaif Staltt. cxecpt fa «ma el iarovhwnl -. tku
thwiajt tlut impMchaUe oOkuett u* lUstiMd cAmm ■griiwl tba CaUod Stuaa. U
Uu 8*tU maj then dccWe nhat tn eBimxt ■ftlBit Uu tTnitaii State* bf miwiiw
to iIm OoaiiMni b«, vh^ mtj not th> <MMt* of tin Utiiud SlalM, Vtia itw csfnM
ddifptka «r juri*dlctlon ov«t "■OaiMNaiMlvatBmt M|*iaU«mil*r tW uttWity
at tb« tJBUrd £tatM,- far ilw act of ITSfl. eh. n. I II. act In tbr IBBM Mann r
> Dnana. AsdMiM, « WImI. H. 1M t B««k m Omrtit. cb. ». n<. 371, aT&
> t W(n4cbb<i. LmI. 40. p. sea 1 Cmk. Dig. dtfe I\tHiam,mK L. 3> ta U.
■ 2 W«adMM, Uct SSb ^ MS; C^hb. DJ*. Hihtmumt, 1- » to M.
(a) TU* n cf conna ■ Isfiu Jt'afwr;
ib* BMa&lBC ii^ tka oSenocs wooM not tarn
tia itaiihl iliwrilinfif llm wnta pasM-
msUlftOktad.
THB BENATE.
6S5
^
I
^
^
^
Tenting other persons from giving counsel to tho king except in
their presence, ond proairing exorbitant persoukl grants from
the king.) Itut othoni, again, were founded in the most sulutuiy
public justice ; such as iuipeachmcnls for malversations and neg-
lects in office, for encouraging pirates, for oflicinl oppression, ex-
tortions, and deceits, and especially for putting good maj^strates
out of office and advancing bad.* One cainiut but be struck, in
this slight ennmeralion, with tho utter unfilnras of tlie common
tribnnalfl of justice to take cognizance of such ofTenccs, and with
the entire propriety of confiding the jurisdiction over tlicm to a
tribunal capable of onderstanding and reforming and scrutiniz-
ing the politj of the state,* and of sufTicicnt dignity to maintain
the independence and reputation of worthy public ofliwrs.
5 801. Another inquir\' growing out of this subject is, whetlier,
under the Constitution, any acts are impeachable except such as
are committed under color of office, and whether the party can
be inip<^'«ched tliorofor after he has ceased to hold office. A
learned commentator seems to have taken it for granted that the
liability to impeachment extends to all who have Ixjcn, as well as
to all who are, in public office.* Upon the other point his lan-
guage U OS follows : '* The legitimate causes of im)>eAchment hare
been already briefly noticed. They can have reference only to
public character and official duty. The words of the text are,
* treason, bribery, and other high crimes and misdemeanors/
Tlie treason cuntemplnted must he agninst the United States.
In general, those offences which may bo committed equally by a
private person as a public officer are not the subjects of impcach-
tnont Murder, burglary, roMwry, and indeed all offences not
immediately connected with office, except the two expressly mcn-
tioricd, are left to the ordinary couree of judieial proceeding, and
neither house can regularly inquire into tbcm, except for the pur-
pose of expelling a meml>er."'
§ 802, It do4-s not appear that either of these points has 1>gcd
judicially settled by the court having properly cugaix^unec of them.
In the case of William Blount, tho plea of the defendant expressly
> Com. 7%. pM-liamaU, L. tS to 40.
■ Com. ffig. /^triiamnl, L. S8 to 40.
• S Woodwon, tect 40. p. 002.
* Bawie im CoatL eh. 3% ^ SIS ; Bloont'i Trial, pp. ». SO (FUhd. ITM).
' * Bawie on CbortilatbM, A. 21, )>. 216.
$80
OONSTITCTION OP THE OKITED STATES. [BOOK HI.
pDl both of thom sa exceptions to the jurisdiction, ftllegiog liuU
at thv tjine of the impeachioent he, Blount, wa» not a senator
(t1ioui:li hu wutt Kt the time of the charges laid agaln»t him), and
ttiut he wad nut charged i>y the articles of impeachment with har-
!»g committed any crime or misdemeanor in the execution of any
civil olhc^: ht-ld imder the Uaited Statea, nor with any malconduct
in a civil officv, or abase of any public trust in the execution
thereof.' The deciaion, however, turned upon another point, vii.,
that a neiiator was not an impeachable officer.'
§ $03. Alt it i« declared in one clause of the Conatitution that
** judgment in cascn of impeachment shall not extend further than
ft removal from office, and di«(iunlifieation to hold any office of
honor, trust, or profit under the United States," and io another
olaoae, that the " Provident, Vice-President, and all civil oQioeni uf
tlie Unit«d States shall be removed from oRioc on im|*oachnieat
for, and conviction of, treason, bribery, or other high crimes or
mii^Ienkeanors," it would seem to follow tliat the ISt-uato, on the
comiiction, were bound in all coses to enter a jndginejit of re-
moval from office, thoug;h it has a di.tcrelion as to infUcting the
punishment of disqualification.* If, then, there must be a judg>
mcut of removal from office, it would seem to follow that the Cott-
stittition 0>mN-mplHt4>d that the party vtts still in office at the time
of im[)cu<^liin<:nt. If he wa? not, his offence was still liable to be
tried and punished in the ordinary tribunals of justice. And it
might be argued, with some force, that it would he a vain exercise
of authority to try a <!elin<]uent for an impeachable olTcnce, when
the moat important object for which the remedy whs pven was no
longer necessary or attainable. And although a ju(l)^ment of dis-
ijualilicatinn might still be pronounced, the language of tlie C'nn-
fltitution may create some doubt whether it can be pronounced
witbunt beiu^ coupled with n removal from office.* lliero is also
much force in the remark that an impeachment is a proceeding
purely of a political nature. It is not so much designed Io puuiiili
an offender as to secure the stale againat grosa oflicial mi^c-
■ See Sonilf Jooninl. Mtb Jsn. ITM ; 4 Tackar'* Black. Camm, Jt\<f. AT, ftS.
■ SerB*ut oa Canat. L». cb. $3. p. 363.
■ Vfon thr impeMhment anil fonijclioa uf John Pickfring (IStli of Muviv I^IK
ibe CBlf pUBiabmrait nwuded bj Uic Senate wu ■ remoTal fnm oAee. Sm
Blount'i Trial, 01 W « ; Id. 70. 83, 83 <riuUd. 17M) ; Sugexti m Onwt 1^, <
a». p-aet
« 8« Rkmnt'i Trial. 47. tS ; 14. Kl to 4» (I>hili4. 1 r») i U 83-
THR SENATE.
58T
¥
ueanora. It touches neither his person sor liiB property, but
simpJ; diveitts liiin of hiH polilical capacity.'
§ 8&4. Ttie other ptiint is one of more tliflicuUj. In the argu-
ment upon Klonnt'H impeachment, it was pressed witli g:rcAt car-
nestnefls tlitt tliere is not a syllable in the Constitution wbich
confines impeachments to oflicial acts, and it is aRainHt the plain-
est dictates of common-tieniu! Ihut such restraint should lie imposed
upon it. Suppose a jud^u should countenance or aid insurants
in a iaeditatt.-d conHpimcy ur instirreetitHi against the f^ovemmcnt.
This is nut a judieutl act, and yot it ou^lit certainly to be impeach-
ablo. He may bo caJIcd upon lo try the very persons whom ho
has aided.* Suppose a jud)^ or other oHicer to receive a bribe not
connected with his judicial office, could he be entitled to any pub-
lic tonfidcnce ? Would not these reasons for bis removal bo just
as strong as if it were u t'sso of an official bribe t The ai^ument
on the other side vas. that the power of im(>cachnient was strictly
confined to civil ofHcersof the United States, imd this neecssunly
implied that it must be limited to malconduct in office.*
. § 805. It is not intended to cxprr-ss any opinion iii these oom-
mrataries as to which is the true e.\p<witioii of the ('oiiMitutioD
on the points above stated. They are brotif;ht before the learned
reader as mutters still gufi jmlice. the final decision of which may
be reasonably left to the hijrli tribunal constituting the court of
impeachment when the occasion shall arise.
§ 806. This subjeet may be concluded by a summary statement
of the mode of proce«din)r in tlic institution and trial of impeach-
ments, as it is of rare oocurrcnco, and not goi-cmed by tlio formal-
itiea of the ordinary prosecutiona in courts at law.
§ 807. When, thou, an officer is known or suspected to be
gnilty of malversation in ofKce, some moml>er of the lionse of
> Ht. B>}-ud. Bloimf ■ TiU, 3S (Fhlkd. ITM) ; M. 80^ 61.
■ Bknmt'i Trial. 3», W (Plulad. im> ; U. 8A
• BlMBf I Trial. 4a to 4» : Id. 61; M Id <« (Phaadoliihk. 17M^ WIIUui Blawt
WM MptlM from tk* t^iiato a fow dij« baton IKU lnpMchiiMat(b>im Umh a (nsm-
bert. Mil om Uwt ott*iaan hi mu, tiy a iMohitkn «t ikt ShmM (Y«m^ tt ; Hay, 1^
ilecluvtl tobv "gailtjata Ai^ nui^aHiiiHrcnUrelyliicionibttat withkiainUlcniUI
■nj itiiiy ai ■ •rimtor." Tha obiMa abaiB»d «m art deGaad bj anjr (taluta of the
ITniled Sute*. It WM bf «i atttnpt to udaoe •■ United SUtaa lailiui intarpntrr
froia U* duty, and to aUcnata ih» atfwtloM and coaHiitMa q( ibc lodiaat from Uie
public offlmt rMUlinff anottx tiMim IM. Jeara. of Siniat*^ 8th Jal;, 17V7 ; Beignat
«n C<mat. La«. An.pf.3St, SST.
588
CONSTITUTION OF THE UKITBO StATM. [tMMlK fit.
Bcpresentaiivcs nauallj- bringn forward a rfiRolution to acct»c the
party, or for the appointnaent of a committee to connider and report
upon the charges laid against him. The lattor is the ordinatr
course, and the report of the committee usually contains, if adTcru
to the party, a Htatcment of the charges, and recommends a reso-
lution that he be impeached therefor.* If the rciwlution is adopted
by tho House, a cummtttce is then appointed to impeach the party
at the bar of tlic .Senate, and to state that the articles against him
will be exhibited in due time, and made good before ihc Senate,
and to demand that the Heriate take order for the apjteitnuice of
the party to answer to the impeachment." Tliis being accordingly
done, the Senate signify their witlingnesa to take wich order ; and
articles are then prepared by a committee, under the direction of
the House of fleprcftentatives, which, when reported to and a{>-
provcd by the Honse, are then presented in the like manner to the
Senate, and a committee of mana^rs are appointed to conduct the
impeachment.* As soon as the articles are thus pR-sentcd, the Sen-
ate issue a process, summoning the party to nppeAr at a given day
before tlicm to answer the articlea.' The process is served by the
sergeant-at-armfl of the Senate, and due return is made thereof
under oath.
§ 808. The articles thus exhibited need not, and indeed do
not, pursue the strict form and accuracy of an indictment.* They
are sometimes quite general in the form of the allegations, but al-
ways contain, or ought to contain, so much certainty aa to enable
the party to put himself upon the proper defence, and also, in case
of an acquittal, to a^'sil himself of it as a bar to another impeach-
ment. Additional articles may be exhibited, perhaps, at any stage
of the prosecution.*
§ 80^. When the return day of the process for appearonoc has
arrived, the .Senate resolve themselves into a court of impeachioent,
and the senators are at that time, or before, solemnly sworn or
* Odm. Dig. PariiMMml, L. SO ; 8 Vonimm. leeL M. fip. MS, <(M i JsBeraoa'*
Uonual, Not. M.
* Coni. Dig. Parliamemt, L. SO ; S Wcodetan, L«ct 10, pp. SOS, Ml ; JaB«Mn1|
lianual, ttt. hi.
■ Com. Dig. Parliiaartil, L. II ; Jrff<raMi'i Mutnal, «M. 5S.
* Com. Dig. Parliamnii, L. 14, IS, 19, 90 ; J*lT*TMn'* H*niHJ. *Mt. £3.
* 3 WwdMM'a l>a. 40, p^ eOS, «0a i Oow. Dig. iterfMMnil, U SI t Fcrter i
Cram Uw, 8S>. SM.
* tU<k 00 CVMUt. di. Xt, p. SIS.
VH. X.]
THE 6ENATB.
689
aJTinned to do iin|mrtial jtutico upon the imp<>achinent, according
to the CoUBtitution and lavrs of the United Staten. The person
impeached is th«n called to appear and atutwor the articles. If he
doitt not appear io pcnwa or by attomur, hiu default is recorded,
and the Scnutu inu)' proceed rx parU to the trial of the impeacb-
mc-nt. If he does appi-4ir in person or by attoniey, his appearance
is recorded. Couii»el for tliu parties are admitted to appear and
to be heard upon an impeachment.!
§ 810. When the party appears, he is entitled to be furnished
with a copy of the articles of inipcaclimcut, and time is allowed
hiin to prepare his answer tliereto. The answer, like the articles,
is exempted from the necessity of observing great strictness of
form. The party may plead that he is not giiilty as to part, and
make a further defence as to the residue; or he may, in a few
words, Having all exceptions, deny the whole chai^ or charges ;'
or he may plead specially, in justification or excuse of the sup-
posed offences, all the circumstances attendant upon the case.
And he is also indulged with the liberty of offering argumentative
reasons, as well aa facts, against the charges, in aufifiort and as
part of his answer to repel them. It is usual to give a full and
particular answer separately to each article of the accusation.'
§ 811. When the answer is prepared and given in,thene:it rcg-
ular proceeding is for the House of Representatives to file a replica-
tion to tite answer in writing, in substance denying the trutli and
validity of the defence stated in the answcr,aDd arernngthe truth
and suRiciency of the charges, and the readiness of the House to
prove them at such convenient time and place aa shall be appointed
for that purpoac by the ^Minate.* A time is then assigned for the
trial, and the Senate, at tliat period or before, adjust the prelimi-
naries and other proceedings proper to be had before and at the
trial, by fixed roKulaliuns, which are made known to the House of
Rcprcacntativcs and to the {tftrty accused.^ On the day appointed
for the trial, the House of Representatives appear at tJjc bar of the
Senate, citJter in a body or by the managers selected for that pur-
pose, to proceed with the trial." Process to compel Ibo attendance
\ JdTarMii*! llmnBtt, not GS.
■ 2 Wa«l««an, LMt M. pp. MM, 60T ; Con. Dig. FnrliaauiU, L. 23.
* S WMilnM. VkU t(i. (1. eOT : 3ttSmom'» Hmuti, mc*. S3.
* EtM t WoodMon. Uft. to. p. SOT ; Co*. Dig. F^imm^. U 31.
* See 3 Weeileeaii. Lett. M, p. <1«. * JtOmaB'i Muual, kcL Ct.
&90
CONSTITUTIOK OP THE DNITKD STATEa. [BOOK lit.
of witnesaea is previouHly i«aaed at tlie request of either partj, bj
order of the Senate, and ut the time and place appointed they an
bound to appear and give testimony. On the day of triu), the
parties being ready, tho manaj^ra to conduct Ibe prooccutioa opuo
it on behalf of the Hou8« uf Representative, oae or more of them
deltrcrinf; an explanatory iij>co«b, cither of tlic whole uhargca or
of one or more of tliem. Tho proooedings arc tlieii coDduded
substantially as they are upon common judicial trials, as to the
admission or rejection of tctttiniony, the examination and criKi^-
examination of witnesses, tlie rul(:s of evidence, and (he legal doc^
trines as to crimes and misdemeanors.' When the whcrfe erideoc
hns been gone through, and pnrtiCH on eacli aide have been full
heard, the Senate then proceed to the oonsideratioo of the casft^
If any debates arise, they are conducted in secret; if none arise,
or after they are ended, a day is assigned for a Una! public deci-
sion by yens and nays upon eacli separate charge in the articles ai
impeachment. Wlien the court is assembled for this purp<MC, the
qnestion in propounded to each member of the Senate by
by tiie president of the Senate, in the foUoiHng manner UfMin escll''
article, tho same being fust read by the secretary of the Senate :
*• Mr. , how say you, Is the re8pon<lent guilty or not guilty of
a high crime and misdemeanor, ss cliarged in tlie article of
impeachment?" Whereupon the member rises in his place and
ansvera guilty or not guilty, as bis opinion is. If upon no article
two-thirds of the Senate decide that the party is guilty, he is
entitled to an acquittal, and is declared accordingly to be acquit
by the president of the Senate. If he is convicted of all or any of
the articles, the Senate then proceed to fix and declare the proper
pnnishment.* The pardoning power of the President does not, as
will bo presently seen, extend to judgments upon impoachmeat;
and hence, when once pronounced, they I>gcoom) nbsotuto
irrerersible.'
$ 612. Having thus gone through the vliolo subject of Impeach-
ments, it only remains toobserve that a close survey of the aystcm,
> S VettlMoit, LkL en : Jplttnou't Ijasual. Kft S3.
* Thla Munmar?, wIud do othtr antliaKlj ji cilM. bu been drawn up tma thr y<nr-
tJot, in the ounoT imptachau-nt alrauly til«l by ibe S*Mtte of the Vtir
naiiMly, of WUIuat Blovnl, is 17*8 ; <J Jotui Plrknrii^ la 1S04 ; of Sunii' : n i
IMt ranil of Jama H. Vtuk. la 1B81. 8m Um Sauau Joumala of Hum Titata. Sa
•Im J«a«non'a MaiiM), mM. Ml.
■An. 1, Mrt. S, tUmt t.
fflB SBNA1T.
SOI
nnleiw wa are cgregiouitly deoeired, will completely dcinooKtrAtc
the wisdom of the arrangemenU made in evcrr p«rt of it The
jumdiction to JDipcacIi in [tlaced, where it should lifi, in th« po«-
sesaion and power of the immediate repreaentativett of the peopla
The trial ia before a liod; of great dignit>- and ai>ility aiid indo-
pcndeooe, possciwhig the requisite knowledge and firmnew to act
I with vigor and la di-eidc with impartiality upon the charges. Tlie
]tersona subjected to the trial are olRocro of the national govern*
meat, and tlio ofTeucva are gueh aa may affect the rights, duties,
and relatioim of the party accuMXl to the public in his political or
oflicioi character, citlier directly or remotely. The general rules
of law and evidence applicable to coounon trials arc interposed to
ct the party against the excrciac of wanton oppression and
litrar)' power. And the dnul judgment is confint'd to a removal
from and disqualification for office, thus limiting the punishment
to 8ucl) modes of redress as arc peculiarly fit for a jtoUtical tri-
bunal to administer, and as will teeur« the public a^ust political
injuries. Tn other respects, the offence is left to be disposed of by
tile common tribunals of justice, according to the laws of the land,
upon an indictment found by a grand jury, and a (rial by a jury of
peers, before wliom the party ia lo stand for hia final deliverance,
like his fcltow-eiltzens.
^ § 813. In rc«pect to the impeachment of the President and Vice-
B President', It may be remarked that tliey are, upon motircs of high
State policy, made liable to impcacliment while they yet remaia
in office. In England, the const itittionnl raaxim ia that the king
can do no wrong. His ministera and adviflers may be iinpeaclied
and pimifthed ; but he is, by his prerogative, placed a)>ove all peN
Bonal amenability to the lavs for his acta.' Tn some of the State
conHtitutiona, no explicit provision is made for the impeachment
of the chief magiatrate ; and in Delaware and Virginia he was
not (under tbeir old constitutions) impeachable until he was out
of office.' So that no immediate remedy in those States waa pro-
I Tided for gross malversations and corruptions in office, and the
only redress lay In llic elective power, followed up by prooecu-
tions after tlie ]Nirty had ce^uied to hold bis office. Yet cases may
I be imagined where a momentary delusion might induce a majority
I of the people to re-elect a corrupt magistrate, and thus the remedy
> 1 BUck. ComM. SM, 247.
• Tbo Ptdtnlbt, So. ».
69S COMSTITDTION OP TEE ITHITED STATES. [BOOK IIL
would be at once distant and imcertidn. The proTiaicm in the
Constitution of the United States, on the other hand, holds out a
deep and immediate responsibility, as a check upon arbitrary
power ; and compels the chief magistrate, aa veil as the httmbleat
citizen, to bend to the majesty of the laws.
CH. II.]
ELKCTIOKa.
0W
C^AI>T^:R xi.
ELBCTI0H8 AKD HEBTIKGfl OP COKOBESa
§ 814. The first clause of the fourth section of the first article
is tiK follows: " Tli« tiroes, placen. and manner of holding elections
for K^'iiiitors and reprcseutativcs ahall be prcscribod in each State
hy the legislature thereof. But the Conp^rcsa maj^, at any time, by
lav, nmke or alter such regulatiims, except u to the place of
choosing Bonaturs." (a)
thft mnw ]vnon «h>ll nnt liava r*otlT«d a
nujority of (hs votoi in rnch houor, or it
tithtr hoiiH thall hnvf failnl ta take pro-
ceeding! u rvquirtd by thii act, thfl joint
•Mtiubtj ihiill Ihi'n prv«c<il In choouc, by
s tina met n>U of mt li iii«iab«r }iita*nt> a
penon for tlio iiuriwn* afunaaid ; ud ihs
pinon having a iiir^orit]r of all ths Totca
«r ihft mU )otDt aMomhlj, a niajoffly et
all tlio mptnbcn elected to both hooica ba-
iug procnt and toting ahall ht dncland
duly rlw-tBii ; anil in om ba )jrrKa uliall
RmiTf luck majority on the Gret day, tha
joint (Mcmbly ihall nuvt at tw*lra o'clock
tucridian of each nuixefdlng day daring
tha atoaloii of Ilio l'-f.-li>laliii«, and taka
at Itact ons vob^ nntit a MValor ihall W
cket«d.
" Sw. 9. That, vhcnartrim the mart-
Ing of Iha lagltUton of any Stattv a ra-
«a»cy ahall axitt in Iha rriirunntiitMn ef
mA 8ut« im tht Senate <J tba Caited
States Mid Icfiitalnrv *hkll prootrd, on
Iha ••oond Tarijiy aftn llie roMnunea-
mant and onpuiiMLion of lla ttwtoa, ta
slcct a ptrsMi t* &U mch Tiouicy, in Iha
manner heninbafore prarMrd forthf aba,
lion «f a •enatar for the fiill Una ; «ad If
a rtoancy thall hai<fiMi during I he iwltim
»f Um k^latar^ IImb an tkt wwi
TWiUay after tbe kgUatuia tball h«*«
bntn oritaniuil and iJiall har* »atl0i «t
«uch racancy.
"8t& 8. That it ahall b* tbe duty «l
(a) Sm e* partt SioboR 100 V. S.
Sn i Ex paru Claiko^ lU 39d ; Cnited
8Ut«a r. Oalh lot IT. S. 05, An act n-
guliting tli« eirdion of Hnnton hai bpcD
|iaMod. " Tbe kgiiUlure of raeh Slain
•hkh ahall ba tiumai nait ptvceding llw
«x{unitii)n uf thff time for vliicli any ■«>•
atot was elected to n[irHcnl laid State m
Cont^riM. alwll. nn the ircond Tnnday af-
lei the meptiiig and organimtion therrof,
proceed to rlctit a aotuior in C««igraa, in
the placr of mrh unator to going oat of
olUo^ ill the foltovtug maiinpr ; Bach
bouie diall o|itnly, hj a ann net Tole of
aach mcmbtt pntral, name ana pCTNai for
BMiator la Canpa« fram lahl Siata ; and
tbe nam« of thv ptron so voted for, alio
(ball bare a majority of the «th>o1e iium-
bar of vutea laat In nach honat, dull bo
anIaiBd on the jonnui of oach houa* by
tbeclerhoraerretary Ihrreof ;bntil»ilhor
bona* ahall fnil to (^n lueb Mvority to
any pmon an *ai<l day, that bet ahall ha
•nl«nd on the jeariMl, At tvalva o'clock
meridian of tha day folloaing that on
wblah procradlnp are ToquJrnd to lako
plaoa aa afcivMiid, Ihr membrn of the two
hiHure ahall eonrene in joint aiMnbly,
and the jonraa] ot each bonae abalJ tben
be read: and U the anaapoMM thai! have
raeelvad a majority of all Iba T0«aa in each
booat^ a»fh p«n«n ahall be dedarwl doly
riaolnl aanalor to wpaatnt aajd 8tat* in
Um Ctngtam of tha trnltcd 8UUa ; bat it
VOL. 1. — 38
50-1
CONSTITCTIOK OP THE UNITED STATES. [BOOK [D.
§ 815. This claitse do«8 not appear to have attracted much et>
tciitioii, or to have encountered much op])o«ition in the convention,
at Iciutt 80 far u caii be galliorod from tJi« jounial of that body.'
But it n-EM afterwards aseftiU-d by tlie o|i]>onent8 of tlie Coiiiitttu-
tion, both in nnd out of tlie Htato conventioua, with uncommoa
zeal and virulvncc. The objection was not to that part of the
clau»c which vc»t« in the State ]egislature» the power of prcscrib*
ing tiiv timvs, places, and nmnner of holding elections ; for »o far
it w«a a surrender of power to the State governmenta. But it wa
to the 8iiponnt*nding power of Congress to roakr or alter sadi*
regulatioim. It was said that snch a su[MTin tending power would
be dangerous to the liberties of the people and to a just exercii*e
of their privileges in elections. Congreti.i miglit prescribe the
times of elections so tnireasonably as to ])revent the altendanoe of
the electors, or tlie place at ao inconvenient a distance from the
body of the electors as to prevent a dtie exercise of the right (A
chrnce. And Congress ntight contrive tlie ntannfr of holding elec-
tions so as to exclude all but their own favoritea from office. They
might modify the right of election as they nhoiild please; the
might regulate Uie number of votes by the quantity of propert]
without involving any repugnancy to tlie Constitutioo.' The
and other Hii;^ationa of a similar nature, calculated to spr
terror and alarm among (he people) were dwelt on with peculil
emphaflia.
§ 816. In answer to all such reasoning, it was ui^>d tltat tlie
was not a single article in the whole system more completely de^^
fensible. Its propriety rested upon this plain proposition, tbat
every government ought to contain in itself the means of its
OWD preservation.' If, in the Conatittitiou, there were some
> Journil of Cmvration, pp. 310. S40 ; M. SSI, 37*.
■ 1 Ellioti IVbiitn, (S to SO ; Id 93 to 6B ; 3 >:iUc)|-(Det«tas,«8. 30. 7<. 14MM:
8EUi(ii'iD«Wi«.5T t<>71: 3 Amtrma Hiumm, 43S ; 14 U£ ; Id. MS ; 3 AmmIo
HuMnnw (23 : S Elliot* Dclata, t71.
• Tha Ft.kfiilbt. No. fiO ; 1 P.IIiof* IVUIm, ZT9, S77.
tbe govwimr eC tfa* Blali* rrooi vhkb amj
moMca ■hall have bfcn ohoivn u «ltiiv>
will, U rettitj hii tltctwn, mtitr the hmI
or iIk Sute. 1» tlio ]iK«il«nt «f the Svoato
oTtlifl tJnitM 8t«tM, irbticti«Ttiliwtt (lull
bn founttriignod by iIm ircrvtarjtJ aUW
Ot tiM StkU^" Apfiwti Inly a, )H«.
TliB ■lectio* of tifffWOTtitl WW >ft tf ml
t» pfondod Ita hj Of Act at I'oapws «
FcbcMi; 1, 1672. vliich reqsina UudM-
iiMH to l>« in ilittncti of tontiifaaa* Ur<-
rttorr. Mill to he bcU on tbe TuMJay Mit
*/tw Iba Ont H<aidaj;iii Nen^nW in '
ytu lS7<k*Dd anty Im tmh I
ca. XI.]
ELEtTIOXS.
596
^
^
^
^
departures from this principle (as it might be admitted there
wore), they were matters of regret, and dictated by a controlling
moral or political necessity, and they oiiglit not to lie extended.
It wfis obviously impracticable to frame and insert in tJie C'niisti'
tutiou an election law which would be applicable to all po«»i1)te
changes m the aititation of the country, and convenient for all Uie
Stales. A discretionary power over elections must be vented
somewhere. I'here seemed but three ways in which it could be
reasonably organised. It might be lodged either wholly in the
national legislature, or wholly in the Klate legislatures, or prima-
rily in the latter and ultimately in the fonni>r. The last was the
mode adopted by the convention. The regidntion of elections \m
submitted, in the first instance, to the local governments, which,
in ordinary cases and when no impro|»er views prevail, may both
conveniently and natisfaatorily be by them exercised. But in
extraordinary circurastances, the power is reserved to the national
goremment, so that it may not be abused, and thus hazard the
■ofety and permanence of the Union.* Nor let it be thought that
such an occurrence is wholly imaginary. It is a known fact that,
under the confederation, Itliode Island, at a very critical period,
withdrew her delegates from Congress, and thus prevented some
important measiiroA from being carrie<l.'
§ 8t7. Nothing can be more evident than that an exclusive
power in the State legislatiirra to regulate elections for the na-
tional government would leave the existence of the Union entirely
at their mercy. They could, at any time, annihilate it by neglect-
ing to provi<le for the choice of persons to administer its affairs.
It is no sufficient answer that such an abttse of power is not prol>-
ablc. Its poHsibility is. in a constitutional view, decisive against
taking such a risk ; and there is no reason for taking it. The
Constitution ought to be safe against fears of this sort, and gainst
temptations to undertake such a project. It is true that the State
legtsUtures may, by refusing to ohoose senators, interrupt the op-
erations of the national government, and thus involve the country
in general niin. But 1>ecaune, with a view to the estsblinhmcDt of
tlte Constitution, this risk was necessarily taken when the appoint-
ment of senators was vested in the State lei^latnrcs, still it did
not follow tliat a power so dangerous ought to be conceded in
■ Th* FiiVnlut, So.S»i» Elliot's IVWtM. 38. Mi Id. S74, VJ.
* 1 EUiot'* DtUtM. 41, tS i Tbe t'nlenlUl, Ho. S3.
506
cossrmjnoN of the united states. [book iit.
cases where the same o«ccs«ity did not exist On the contrary, jt
became the dutj^ of the coiivention, on this very account, not (o
multiply tliu chuncM of mischievous attempts of this sort. The
risk, too, would be much greater in regard to an exclusive power
uver thu elections of representatives tlian over the appointment of
scnutors. The latter are chosen for six years, the representatives
fur two years. There is a gradual rotation of office in the Senate,
every two years, of one-third of the body, and a quorum is to con-
sist of n mere majority. The result of theac circumstances would
naturally be, that a combination of a few Htates, for a short [leriod,
to intermit the ap|xiintmeut of senators, would not interrupt the
ojiorations or annihilate the existence of that body. And it is not
against permanent, but against temporary combinations erf the
HtateH, that there is any necessity to provide. A temporary com-
bination might proceed altogether from the sinister designs and
intritnx^a of a few leading memlrors of the ^tato legialaturea. A
]>prnianeut combination could only arise from the deep-rooted
disaffection of a great majority of the people ; and, under saoh
circumstancoB. the existence of such a national povcrnmcnt would
neith^T be desirable nor practicable.' Tl»e very shortness of the
period of the elections of the House of Represeatatives might, on
Ibc other hand, furniHh means and motives to teuii>orarv' comlHiuk
tions to destroy the national government ; and every returning
election might produce a delicate crisis in our national affain,
subversive of the public tranquillity, and encouraging to every sort
of faction.^
§ 818. There is a great distinction between the objects and in-
terests of the poc^lv and the political objects and interests of Uieir
rulers. The people may be warmly attached to the Union and its
powers nod its operations, while their representatives, stimulated
by the natural rivalship of power and the hupca of personal ag-
grnndizemcut, may be in a very opposito temper, and artfully
using all their influence t« cripple or destroy the national govern-
nient.^ Their motives and objects may not at lirst bo clearly dis-
cerned; but time and reflection will enable the people to under-
stand their on-n true interests, and to guard themselves against
insidious factions. Besides, there will be occasions in which the
• The F*di>r«lW. No. 09. « IHJ.
> Tbo F«d«n1bt, »«. GP ; 1 RlliM'a V<iUit% iS to SS ; Id. 47, SS ; a OUeCa D*-
d
KLBCnOMS.
69T
pooplu will be excited to undue rcBentmoDts against the Datioaul
government. With so effectual a vreapon in their hands as the
excl uaivc power of regulating elections for the national govern-
ment, the combination of a. few men in some of the large States
migitt, bj- seizing the opportunity of some casual disaETectioa
among the poopio, accomplish the destruction of the Union.
And it ought not to be overlooked that, as a solid government
will make us more and more an obJMt of jealousy to the nations
of liuropo,80 there will be a perpetual temptation on their part to
generate iatriguefl of this sort for tJie purgiose of subverting it.^
§ 81!). I'bcre is, too, in the nature of such a provision, some-
thing incongruous, if not absurd. What would be said of a clause
introduced into the national Constitution to regulate (he State
elections of the members of the Stale legislature* ? It would be
deemed a moot unwarrantal)lo transfer of power, indicating a pre-
me^litated drnign tn destroy the Htate g<»vemment8.* It would be
deemed so flagrant a violation of principle as to re<)uire no com-
menL It would be said, and justly, that the State governments
ought to po«w(HM the power of self -existence and self-organization,
indopcDdent of the plctaaure of the national government Why
does not the same reasoning npply to the national government ?
What reason is tlierc to suppose that the State governments will
be more true to the Union than the national government will be
to the State governments ?
§ 820. If, then, there is no peculiar fitnrctci In delegating such
a power to the State legislatures, if it might be hazardous and in-
convenient, let us see whether tbero arc any solid dangers from
confiding tJie superintending and ultimate power over elections to
the national government. There is no pretence to say that tlic
power in the national government can bo used so ns to exclude
any State from its share in the representation in Congrcaa. Nor
can it bo said, with correctness, that Congress vnn, in any way,
alter the rights or <|U!Llificatiuns of vutent. "Die muvtt that can be
urged, with any sliow of argument, is, that the power might, in a
given case, Ira employed in such a manner us to promote the
election of some favorite candidate or favorite class of men, in
exclusion of others, by confining the places of election to particu-
lar districts, and rendering it impracticable for the citizt-ns nt large
to partake in tbo choice. The whole argument proceeds upon a
> lU r«4intUl> M& es. ' lUd.
598
CONSTITUTION OP THK VNITBD STATIS. [SOOK HL
au|][KMilioii the most cbimerical. There are no radonal csIcdIb-
tioiis on which it cui rest, and every probabilitjr ia aicsinttt it
Who urc to piu)8 the laws for rcgulutini; elections? The ('un-
gnxA of t]ie United States, cumpoeed uf a Semite chosen bjr the
State tcf^islatiires, and of reprcscntativM obown by the people of
the Sla(e«. Can it l>e imuKined that thexu jiorsuns will comliine
to dcfraitd their coiistituout« of their rights, or to orertbrow tlie
8tate authorities or the State inliuenco ? The very atu-mpt would
rotise universal indignation, and produce an immediate revolt
among the great masH of tlie people, hoatlcd and directed by the
Htato govern uieiita.' And what motive ouuld there be in Oon-
grem to produce such reaulta ? The very diasimilarity in the in-
grt'dientfl composing the national govunimt^'nt forbids even the
supposition of any effectual coml>inatiou for sueli a purpose. The
interests, the habits, the institutions, the local umploymenia, the
stat<? of property, the genius, and the munnora of the pt-ople of the
different States are so various, and even opposite, that it would be
impowtiblc to bring a majority of either House to agree npon any
plan of elections which should favor any particular man, Or cIiim
of nion, in any State. In some States commerce is, or may be,
the prcdominajit intvri-st ; in othets, manufacttires ; in uthcni, agri-
culture. Physical aa well as moral causes will necessitnly nourish
in dilToront Stuk-s dtfferont inclinaliofls and propcnttiti(^« on all
subjects of this sort. If ttiero is any cliuts which is likely to have
a predominant influence, it must be either the comnierciiil or the
landed claaa. If cither of these could acquire such an inflitence,
it is infinitely more probuble that It would Ik acquired in the State
than in the rational councils.' In the latter there will be such i
mixture of all interests that it will be impracticable to adopt any
rule for nil the States giving any preference to classes or intermts
fwinded upon sectional or personal considerations. What might
suit a few States well would find » general resistance from all thft
other States.
§ 621. If it is said that the cIcctiiHtB mi^t be so managed a*
to give a predoininiinl influence to the wealthy and the well-l>om
{as Ihey are iusiiliouMly culled), the supposition is not lese vi»>
ionary. What possible mode is then to accomplish such a pur-
pose ? The wealthy and the wcll-hom an not conliii..-d to any
particular spots in any State; nor arc their interests pcnnuuently
■ Tlw reienlitt, Ho. 60. > lUd.
CB. Xt.]
naoHom.
699
I
I
I"
lixed anywhere. Tbeir prop«rtir may oonsiat of stock or other
pprsona) prupcrty, iw wroU us of land, of manufactorir-ji on prvut
strcjinin ur on uurrow rivulets or in soqiiratered dells. Tlieir
Vi'(»ll)i may cunsiat of largi-) pluotuttoDB iii th<! bosom of the coun-
try, or Inrms on the borders of the ocean. IIow vain mnst it be
to le);i)tlnte upon the regulation of eleotions with reference to oir*
cujniitances 80 inlinitely varied and so infinitely variable! The
very siiggeRtion ib preposterous. No {KMuible method of regglat*
ing tlie time, mode, or place of elections could giv% to the rich
or elevated a general or permanent advantage in the elections.
The only practical mode of ncoomiilishing it (that of a property
qualilication of voters or candidates) is excludiM) in the scheme
of the national government.' And if it were ;)0»«ible that such
a denign could be accomplished to tlie injury of the pi-ople at a
single election, it is c«rtain that the unjwptilarity of the meas-
ure would imiiie<nat'-ly drive the menihent from office who aided
in it, and they would In> succeeded )>y others who would mor«
justly represent the public will and the public interests. A cun-
ning so nliallow would be easily detected, and would be ss con*
tcmptible from its folly ax it would be dilhcult in its oiferations.
§ 822. OtJ)er considerations are entitled to great weight. Hie
Cuitslilulion gives to the State legislatures the power to regulate
the tiiike, place, and manner of holding elections, and this will
•0 desirable a boon in their posseaaion on account of their abil-
ity' to adapt the rogulntion from time to time to the peculiar lo<
cat or (Ktlitica) convenience of the Slates, that ita repre8entati\'«8
in Congress will not be brought to assent to any general system
by CnngrcfW, unlena frtHn an extromo necessity or a very urgent
exigency. Indeed, the danger rather is, that when such neces-
sity or exigency actually arises, the measure will be poetpoued and
perhaps defeated by the unpopularity of tlie cxcreisc of the power.
All the States will, under coimnon circumstiuicca, have a local
interest and local pride in preventing any interference by Con-
gress, and it is incredible that this influence should not be felt as
well in the .Senate ns in the Ilutisc. It is not too much, tjicre-
forc, to j)re«iiuie tliat it will not txs reiiortcd to by Congress until
there has been some extraordinary abuse or danger in leaving it
the discretion of the States resi>nctively. And it is no smalt
imniendation of thin superviHing power, that it will naturally
> TU FedcnlK Xo. 60.
600
CONSTITDTION OF THE UKITKO STATEB. [boOE m.
operate u A check upon undue State legislation, since the latter
might pi-ecipitate the very enl whicli the popular opiiiion would
be aioit sulicitous to avoid. A preventive of this sort, addressed
a pru>ri to State jealousy aud State interest, would become a
most salutary remedy, uot from tta actual application, but from
its moral influence.
§ ^-lA. It was said that the Constitutioa might have provided
that the elootiiHia should be m countioB. Thia was true; but it
would, as a general rulo, afford very little relief against a poaci*
ble abuse, for i-ountieB differ greatly in sixc, in roads, and in ae-
oommodations for elections, uud the argument from pcissiUe
abuau is just as strong eveu after such a provision should be made
as before. If an ek-otor were cunipollablc U> go thirty or fifty
miles, it would discourage his vole as much us if it were one
hundrvid or five hundred miles.' The truth is, that Congroas
could uerer resort to a measure of this sort for purpuses of op-
preasioD or party triumph until that body had ceased to mprewot
the will of the SIjUus and the people; and if, under such oiroos*
Ktaucfs. till- uK'uibers could still hold office, it would be becanae
a gc-nurul and irrvmcdiahle corruption or indiffemice pemded
tlie whole oommunity. No republicuu constitotion oould pretend
to afford any remedy for such a state of thin^*
§ 824. But why did not a similar objection occur agaiost the
State ooQstitiitiunsT Tbe subject of elections, tbo time, yiaee,
and manner of holding them, is in many cases left entirvlj to
legislative discretion. In New York tbe seoaSon are clioacn ttnm
four districts of great territorial extent, each oomprabandiag
several counties; and it is not defined wbere the elections ahtU
be had. 8up(ioee tbe legislature should compel all ibe eUetoit
to oome to one spi^ in the disinct, as, for instance, to Albsn;;
tbe evil would be greftt. but tbe ixM«8ure would not be '
tutionaL* Vet no one practically entertains the aligblest
of such legislation. In truth, all reamning from axiA
possible coses is ill adapted to convince tbe julgnKnt, thimgh it
n»y alarm our prejodioea. Sacb a legiaiatiTe dtseretiaa is aoc
> n* FkdfnUM. H« <1. tW Ml 1b«» *t lU* r—Mbif vfll Mt b*
irilktat ^iwios »• ihi feci Art, ibm^ is S** Sa^laml Ihi natm .
(bar ««tM te At tamtkift bImn Acy wiili. is A* SmAvb njt Wb
tW* an iHt Mmib wi Ha >ttlM— an Md t> iba eam^m, mium th> faynlTi— j
tfww, Md ifWMi anr b^ pl—WrtM 4i«rti*. 1 DM'* CMan^ <S.
* ISUtoi^ Detail SfcSfc 'l^M—llftyfct
CH. XI.]
BLECriOKS.
601
deemed an infirmity in the delofration of conatitational power.
It is dofitncd sufo, Iiccuum.* it can never Ik used uppresHivelj for
any kngth of lime, unlcati th« [woplu thcmsclvcH chooxv to aid
in thi-lr own dcirradntton.
§ 825. llic obji-Ttions, tlicn, to tlio proviiiioD are not aound or
tenable. The reasons iu its favor are, on Uie other hand, of great
foriN! and iRiportance. In the first place, th« power niny be ap-
plied by Coiign-»« to correct any negligence iu a State in regard
to elections, a« well as to prevent a dissolution of tlic government
by deigning and ivfractory States, urged on by some tem[iorary
excitenieutn. In the m-xt plact, It will operate aa a check in
faror of the i}CopIe against any designs of a federal Senate and
their const ttiifuts, to do|irivc the people of the State of their
right to choose representatives. In the nest place, it provides a
remedy for the evil, if any State, by reason of invasion or other
cauKC, cannot have it in its power to appoint a place where the
citixeiis can aafely meet to choose representatives.' In the last
place (as the plan is but an experiment), it may hereafter be-
come important, with a view to the regular operations of the
general govi>rnment, that there abould he a uniformity in the
time and manner of electing representatives and senators, so as
to prerent vacancies when there may be calls for extraordinary
seaaions of Congress. If such a time nhould occur, or such a
uniformity lie hei-oafter desirable. Congress is the only body pofl-
Beaaing the means to produce it*
§ 826, Such were the objectiong, and aueb was the reasoning,
by which tliey were met at the time of the adoption of the Con-
stitution. A period of forty years has since [taseed by without
aiiy attempt bv Congrpsa to make any rcgulutiontt, or intcrfero
in the slightest degree with the t-leftions of nK-mbcrs of Con-
greaa. (a) If, therefore, experience can demonstrate anything, it
is the entire safety of the imwer in Congn-fts, which it Is scarcely
poflsible ^reasoning from the past) should be exerted, unless upon
very ur^nt occasions. The States now regulate the time, the
place, and the manner of elections, In a practical sense, exchi'
sively. The ntauner is x'cry various, and perhaps the power has
■ S» t ElUot** Drti.t«, U. «T. M. 4> : Id » ; Id. «7.
« Tbe FadanllaU Ncl Bl : X EUiafa DeUto. S8, t».
V") Rot Mnoa tti«M MMimntBrtM w«ra the ImI ot ohkh i* ttbnti to m mu l
writfn. it hM feew ikaie igr Mrind M», la | Hi, mk.
602
COSSTITDTION OP THE DSITED OTATES. [0OOK W.
]>eea exerted^ in some insUnces, undvr Uio influcooo of local or'
party fceliugB, to an extent which is indcfrimibli; iu prbiciplc
tad policy. There in no iinifontiity in Uic choice or in tliv modi
of cioction. Ill some t?tal4.'8 the n>pre»cutativ«8 tire chosen by a'
general ticket for the whole State; iu others they are choMo
singly in di»lricts: in others they are chosen in districts con
posed of u population sufTicient to elect two or tliree represents-^
tivcs; and in others the districts are sometinoes single, and
somotirovs united in the choice. Iu some fftates the oandidat
must have a majority of all the rotcn to entitle him to be de
elected ; iu others (as it is in England) it is suthcient if he has i
plurality of votes. In nome of the States the choice is by the
voters piva foce (as it is in Euf^land) ; (a) in othera it is by ballot'
The times of the elections are quite as rarious ; sometimes before,
and sometimes after the rvKular period at which the oAtoe b»-
comes vncanL Tliat this want of uniformity as to the time and,
mode of election has been productive of some inconrenit-'ucca to <
public service cannot be douhtud ; for it has sumctimee occnrrcd
that at ao extra session a whole Stati' bus bL-cu deprived of it
TOt«^ and at the regular sessions somo dialricts havu failed of <
ing reprettentcd upon questions vital to tJieir interests. Still,
strong has been the seiwe of Conpx-ss of the importance of leav-
ing these matters to State (rt^ulalion, that no effort has l>een
hitherto made to cure these oviU; and public opinion has al
irrcflititibly ttcttled down in favor of the existing system.'
§ 827. Several of the Slates, at the lime of adoptini; the Con-
stitution, pn^osed amendincDts on this subject; but none we
ever subeetjueutly proposed by Coogress to tlie people, so that the
public mind ultimately acquie«ocd iu tlu) reasonableness id
the existing provision. It is remarkable, however, that none of
Uie amendments pro|)ased in the Stale conventions purported to
take away entirely the superintending power of Congress, but
only reatrictcd it to caaes where a State neglected, refused, or
was disabled to exercise the power of regiilatin|i elertious.'
§ 82S. It remains only to notice an exception to the power of
Congress in thiii clause It is, that Congress cannot alter or
make regulations "as to the place of choosing seoatots." This
1 1 TuckfTn Black. Ooiiim. App. IDS. * l-L 191, m
* 8m Jounul of ConveniiM, Suppkmat, riv WS. tit, tli^ 4U, »S3, 147, 4U.
(a) Tb* KiUior vtoU In 1S33.
CU. XI.]
ELBCTIONS.
608
^
exception U highly reasonable. The choice? ia to he made hy
tliv State Ic^slatuiT, and it would not be either neceuarj or
bvooming in Confrrciu to prcscrlbo the place whvro it aliould sit
This exvcptiou vrud not in the revised draft of the Const ituticm,
and WHS adopted almost at the elosc of the convention ; not, how-
ever, without aoine opposition, for nine Stutc« were in its favor,
01)0 rngKinst it, and one was divided.'
§ 829. The second clause of the fourth section of the fimt arti-
cle is OS follows: "The Congreea shall assemble at least once lu
every year; and such meeting shall be on the fii-st Monday in
Ueoembor, unless they Khali by law appoint a different day."
This clauae, for the first time, rande its appearance in the revised
draft of the Oonatitutinn, netir the elose of the convention, and
was silently adopted, and, so far a» can be perceived, without
opposition. Annual parliaments had been long a favorite opin-
ion and practice with the people of England; end in America,
under the colonial governments, they were justly deemed a great
accurity to public liberty. The present provision could hardly
bo overlooked by a free people, jealous of their riphia; and
therefore the Constitution fixed a constitutional period at which
Congreas should asaemble in erery year, unless some other day
was specially prescrilied. Thus the legislative discretion was
neoesiiari ly bounded, and annual sessions were placed equally
beyond the power of faction and of party, of power and of cor-
ruption. In two of the States a more frequent assemblage of tlie
legislature was known to exist. Btit it was obvious that, from
the nature of their duties and the distance of their abodes, the
memliers of CoDgresa ought not to bo brought together at shorter
periods, unless u|>cn the must pressing exigencies. A provision so
universally uce<-|itable rerjuircs no rlndlcation or cominentanp'. *
§ 880. Under the Britisli constitution the king has the sole
right to convene and [>rori>gue and dissolve Parlisnicnt, And
althongli ii is now usual for Parliament to assemble annually,
tile power of prorogation may be applied at the king's pleasure,
so as to prevent any bnsincM from lieing done. And it is usual
for the king, when he means that Parliament should assemble to
do busineaa, to give notice by proclamation accordingly; other-
wise a prorogation is of course, on the hnit day of the session.'
< jAvrnal of ConreoUoii. 85t, 3*1. * The Ftelnmliit, Ho. S3.
• llIlMik.CMiiii.UT, lSS,UKlUiiMtuaaK«tai S Wiboa'cLmrLMt. IM. lU.
604
C0N8T1TLTI0S OF THK UXITEO STATES. [bOOE TIL
J 831, The fifth section of the first artirle embraces proTisions
principal)}- applicable to the powem, rights, and duties of each
hoime in its Sfparato corporate c]isracter. These will not retjuiro
much illustration or commontary, as tlicy are such as are tisually
delegated to all lei^islativc bodies in free guTemoiPots, and were
in practice in Great Britain at the time of the emif^ration of
our ancestunt, and were vxercisrd under the colonial govern-
ments, and have been secured and recuguixed in tlie present
State constitutions.
§ 832. Tlie first clause dcelarn that ''each huuse shall be the
judge of the elections, returns, and qiuiHficatioiis of its own
members, (a) aiid a majority of each shall constitute a iiuoruin to
do business; but a smaller number maj- ndjoitm from day t<j day,
and may be authorized to eoni|)e) tlie attendance of alt^nt mem-
bers, (£) in such manner and under such penalties as each house
may provide. " ' (c)
§ 633. It is obvious tliat a power must be lodged somewhere
to jud^ of the elections, returns, and qualifications of the mem^
bora of each house composing; iho legislature ; for othcrBiae there
could be no ccrtaiuty as to who were legitimately chosen mem-
bers, and any intruder or usurper might claim a seat, and thus ]
trample uiwn the rights and privileges and liberties of thepeo-^
plo. Indwd, elections would become, under such circumstances,
a mere mockery, and legislation tlio exereiss of soiTreignty by
uny stOf -const! tutt'd body. Tlic only posaiblu question on sui-h a
subject is as to the body in which such a power shall bo lodged.
If lodged io any other than tbe legislative body itself, its inde-
pendence, its purity, and even its existence and action may be
destroyed or put into imminent daugi>r. No other body but It-
self can have the same motives to preserve and perpetuate tbe«e
attributes; no other body can bo so perpetually watchful to
guard its own rights and privileges from infringement, to purify
and vindicate its own cliaracter, and to preserve the rigbta and
1 Sm tiwHew Jtmry Elnct)an>riMlS41-ISU, wlwrellie bcmw rer»al tbe gcrtra-
ofi certificate of oleetim lUidcr the Sul« sal u ^nmii fittit eriiknes cf doetion, uiil
llie rabnqnent proeanli^ip.
(a) Sw Kilboon *. TIiomfaDn, 103
IT. S. Its.
((j So, wilhin limit* of jqiiKlktioM,
«r comprltinic RttaidwMo of writMBH^
■lid paiiithiiig Uwn far«mltiii{^ Kit-
bourn r. Tbompwni, lupn. A* to ilw
liullt of JnriMticlioD Me Ibet CMe.
(f| (juitKjt UenMir uTJobn Qaincjrj
Aiam, SDS.
CIl. M.]
BLECnONS.
006
HUKtain th« froo choice of its constitucnlA. Accordingly, llio
powiT li«8 alirnvB been lodged in the legtBlAtire body hj tbc uni-
fonn practice of Knglnnd and America.'
§ ma. Hie propriety of catablinhing a nile for a quorum for
the despatch of bunineBs in equally clear, Hince otherwise the
ooncemn of the nation might be decided by a very small number
of the ntemliers of each body. In Eofflaiid, where the Elouite of
Commoiifi consists of nearly six hundred mombera, the number
tA forty-fire conatltutes a quorum to do businesn.' In some of
the State conBtitutions a particular numlwr of the members con-
Btitutcfi a quorum to do biutluL'ss ; in otbcni a majority is rcquin^l.
The Conatitution of tlio United States lias wisely adopted the
latter cuurHc; and thus, by requiring a majority for a quorum,
has secured the public fn>in any liaitard of passing laws by sur-
prise, or aininst the deliberate opinion of a majority of the
rcprcseututivv body.
§ 835, It may aeem strange^ but it is only one of many proofs
of the extreme jealousy with which every provision in the Con-
stitution of the United tStates was watched and scanned, that
though the ordinary qnonim in the State legislatures is sume-
times leas, and rarely more, than a majority, yet it was said that
!n the Congress of tlie United States more tliau a majority ought
to ha\-e been required; and in particular cases, if not in all,
more than a majority of a quorum should bo necessary for a de-
cision. Traces of this opinion, though very obscure, may per-
haps bo found in the convention itself.' To re(|uirc such an
extraordinary quorum for the decision of questions would, in
efTect, be to give the rule to the minority instead of U>e majority,
and thus to subvert tlie fundamental principle of a republican
government If such a courcto wt>re generally allowed, it might
be extremely prejudicial to the public interest in casefl which
required new laws to be passed, or old ones modiBed, to prc«erve
■ 1 Bbck. Comm. 1«S. 17^ ITS; Rav1« od ttw CoiutitvtiiM, eb. 4. p^M; 1 TUtkt,
ConiH. S30 1 S Wilwn * Law UcL 1&3, 151.
* 1 Tuck«t*> tilKk. Coma. App. 201, 9»; MS, ««. 1 Iwn not bsu aU* to nnd.
in RBjr Vaak» wiiliin m^ n«ch, wlM4htf uiy iwrtkttlar qnonm U n^ Bind la ths H««m
(•r LonU m)
• The ftAtnOtt, So. K ; Joimial of Coavnitkiii, 21S. MS.
(a) ThiM le«4i fooatJint* ■ iwoniB ;
S Englbli Saiut, 183«. p^ 2«l, MS ;
CMpvc** LMtre* mt la CbaaMUnic^ Uu
tor IS, ^ 1S4 ; Vwiwra'* pTMtie* oT
Hooa* of Larit, p. IV.
606
CONSTITOTION OP TUB ONtTKD BTATEft. [BOOK HI.
the gen«ra], in contradistinction to local or special interests.
If it were even confmixl to inariicular caaes, Itie pririle^ inipht
enable nti interested minority to screen thenutelven from equita*
bic sacrifices to the general weal, or, in particular casea, to ex-
tort iindiio induli^nm-8. It would also have a tcuduncy to fottter
and facilitate the baneful prsctieo of scix-Mion, a pructicu which
has shown itself even in States where a majority only U required,
which is subversive of nil the principles of order aiid re^tlor
govcrniucnt, and which leads directly to public convulsions toAn
the niin of republican institutions.'
g HHt>, iiut as a danger of an opposit« sort required equally
to be guarded against, a smaller number is autboriKed to adjourn
from day to day, thus to prevent a legal dis»olutioR at the body,
and a]»o to coni]M>l tlie attendance of alKiCDt members.^ Thua,
the intereata of the nation and the despatch of busineaa are not
subject to the caprice or perversity or negligence of tlte minority.
It was a defect in the articles of ccmfederatioo, sometimes pro-
ductive of great public mischief, that no vote, except for an ad-
journment, could he determined, unlcsa by the votea of a inajorify
of the Hlates;^ and no power of compelling the atteadmco of the
requisite number existed.
• Thr FtdonlUt, Hot, 23. SS.
■- Jounul or CaaivntioD, 21 S. 2it ; t IiuRlt. 4S, 49.
■ OMrcdenlion, art. » ; 1 FJlMfl DttetM, 41, 4S i Ttw Ftdmllrt, Ho. SL
CB. XII.]
PKlriLBOU OP COKOBSBB.
80T
CHAPTER XIL
FBITTLEGIS; AKD POIVIXS OP BOTH ttOVStH OP COXOREBA.
§ 887. Tub next clause is, "Ench honso may (Ivtcrminc Uio
rulea of it« pracocdings, puiiiith its mvmlxsra for disorderly be-
havior, and, with the concurrence of two-thirdn, exiwl a UR^m-
bcr," No pereon can doubt the propriety of tiio proviiiiijn
authorizing each hoiwe to det*nnino th« nilea of its own pro-
C4>p<!infr». If the p-iwer did not exist, it would be Htt«rly im-
pnicticublv to transact the buiiinp^s of tlie nation, cither at all,
or at least with decency, deliberation, and order. The hum*
bleat aa)u>mbly of men is umlorstood to posHCHs thia power, and
it would be absurd to deprive the councils of the nation of a
like authority. But the power to make rules wonld be nutnitory,
unless it was coupled with a power to punish for dlEordcrly be-
havior or disobedience to those rutes. And as a mt^mbcr mij^
be so loflt to all sense of dignity aiid duty as to disgrace the houso
by the gnxutncss of his conduct, or interrupt its deliberations by
pcr|)c(ual violence or clamor, the power lo expel for very a^igra-
vatcd misconduct was also indispensable, not as a coniuioii, but
aa an ultimate redress for the gricvunee. Bui such a power, so
summary, and at the same time so subversive of flie rig^lits of
the people, it was fon-sM-n, miglit be exerted for mere purposes
of faction or party, to remove a patriot or to aid a corrupt meas*
urc; and it has therefore been wisely gimrded by the restriction,
that there shall be a concurrence of twothiiiis of tlie mcmlwrs
to justify an expulsion.' This clause, requiring a concurrence
of two-thirds, was not in the ori|final draft of the C'nnstitution,
%it it was inserted by a vote of t<'n Statea, one hein^ divided.*
A like ^neral authority to expel exists in the British Iloiiae of
Commons, and in the legialatire bodies of many of the ^tatea
composing the Union.
S 8S8. What must be tlie disorderly behavior which the house
■ Kr. J, Q. A'lunu't BcpoTt l«tk* Srau* la tha cbm of Jolm Smith. 91 Dee. ISOT ;
1 HaU** Uv Jmmi. 4SS ; fleiignnl m OmwL Uw. (k. 98, pp. «7, SSS.
■ Jvoraal «4 CmiTciitioii, 118, StS.
608
CONSTITBTIOX Of THE intrTBD STATES. [bOOI IU.
may puniah, and what puniahmcnt} other than expulsion, tnaj
be inflicted, do not appear to have been settled hy any ant
itativc adjudicutiun of either hoiiM; of Congress. A loamed
commcntatur suppuHUt that iticmberB can only be puuiahed fur
misbehavior committed during llie session of Congroea, cither
u-lthin or vriUiwit the walls of the house, though he is also
opinion thnt expiiUion may be inflicted for criminal conduct^
committed in any place.' He doea not Bay whetlier it must be
committed during the sesAion of Congress or otherwise. In
July, 1797, William Ulonnt waa expelled from the Senate for
"a high niifldemeanor, entirety inconsistent with his public Intst
and duty as a ttenator." The offence charged against him was
an attempt to aeduce an American atr^nt among the Indians
hia duty, and to alienate the a0cetiona and confidence of tlM^
Indians from the public authorities of the United States, and a
negotiation for services in l>ehalf of the British govemmenfe.
among the Indians. It was not a statutable offenee, nor was ibi
committed in his ofTicisI character; nor was it committed during
the setwion of ConKm-ss, nor at the seat of government. Yet, by.
an altiioHt unimimous vote* he was expelh^d fmra that liody; and
he was afterwards impeached (as has been already stated) for
this, among other charges.' (a) It seems, therefore, to be settled
by the JH-uatc, upon full deliberation, that expulsion may be
for any misdemeanor which, though not punishable by any stat-
ute, is inconsistent with the tnist and duly of a senator. In tbsi
case of John 8niilh (a senator), in April, 1808, the chai|;e'
against him was for participation in the supposed treasonsblQ
oonspimcy of Colonel Burr. But the motion to expel him wasj
lost by a want of the constitutional majority of two*thirds
themembersof the f?enat&* The precise ground of the failnn)
of the motion docs not api>ear; but it may be gathered from the
arguments of his counsel, that it did not turn upon any doabtj
that tlic power of the Senate extended to cases of misde
not done in lh« prcseoco or view of the body; but most probably
> BawU on th« Coiudtution. A. t. p. 47. ■ Yew S5, naj- 1.
•See iomud oT Snub, 8 Julf, 17»7: SopHfi Const liiw, eh. IS, p. tH ; 1
B«ir* U« Jomi. 4S9, 471.
« Y«« IP, n»T% 10.
(o) MiRhl,lSin.ttM6eute«ip(n«dkni*iul>Hr«riU((edti«woiuUci
■noc «riiti the emnnjr.
OH. Xtt.]
PRITTLEGB8 OF COKGSK^a.
eoo
it wiut dooidod upon some dottbt ns to the fsct«.' (a) U niaj \te
thought difficult to draw a cloar line nf distinction between th«
right to inflict the punisliment of ex{>ut»inn and anj other piin-
inhmont upon a niemlier, founded on tlie timp, plan;, or nature
(rf the ofifcnw, 'n»e power to expel a menitwr is not, in the Brit-
ish House of Comroono, confined to ofTonuea committed by the
pnrlv as a mvinbc-r, or during the acssicH) of Parliament; but it
extends to nil cjiscs where the offence is such as, in the judg-
ment of the house, unfits him for parliamentary duties. ' {i)
§ 839. The next clause is, "Each house shall keep a journal
of it8 proceedings, and from time to time publish the same, ex-
cept sueb parts as tim)- in their judgment require sccrccj. And
tbeyeas and nays of tJie mombor« of eiOier lioum:- on ifny ques-
tion ahall, at the deaii-e of onc-Gfth of these present, be entered
tm the journal. " (c)
■ I HaU'* Law Jonm. iS», 4(1 ; Joun. of SfMta, 9 April, I80B ; Sirxiut'iCoiiA
Liir, ch. SH, pft. S$J, SS4. gMaWprocMilin^Dr lh« AfiiMoiB thccMtpf Huin|<1inr
MsntuJI, 23 Miitk, 17H ; 8«4fHnt'» Conat. Law, oh. 18, p. »5.
■ 1 Btwk. Comm. 1«S. and Chriitua'i NdI« ; Id. 107 mil note. S*w iIm Sex v,
Tillto. 2 Wilwn'* K. 2A1 ; Com. Dig. Piarliaiiunt, G. L 8co 1 Ball'* Un Jonm.
I
{«) 8m Uw |ico«ndl)i|pi In Houitoit't
(Mr, Bnnton'i AMlgnent of D*fc*ta^
Vol. S, p. flS8.
lb\ 8m Cuihing, L» and Pnctice of
Lcgiiladve ABomblJa^ {} 94, IH. Sc-
Mntlj ■ mrmbiT wa* aipalM (br liaviiiK
nMtvwl iiiun''y fnim iboM he had rvcom-
ntMidrd lo Uic I'rwultat for appoinlaMnl
tocAca.
(() ThU elanae wm modi NlltJ upon
wlinn, ill IS3", B nwolnllnn to oxpn^t*
from the journal uf the Scnatu a pivTiiiiia
Raolation of Mninre upon Preaidenl Jxk-
«iM WM nndrr dxtfamati. Mr. Wehafor,
ani»n|[ oUiun. •Iron)(t]r iniutail IhM tho
■Otiun prapoaeil wniiM fca a Btnifrat
Tiolalian of tliia imltumpiit Wvbtut'*
Wottu. IV. Ml Ana Ks Clay'i Worki,
VI. 4S. Th* »pp°*'<' **** *" tottOAf
prMMttd bf Mr. Bratnn. Thirty Vaara
In the Swat*, I. TIT. For anwe iMlem at
tbt Hnal dchaU. m Ibid. 737. AaAUxm
M>T« Mm(JHe ■briitpnaiit of it, •«« Ban*
toa't Ahriilf^niaiit of D«Utn, Vo). 11 A
VOL. 1.-89
dmClar Jutanee of aa cxpUBRfns main-
tloD (KVtin In Ihn hlnlor; or !tlMwhatrita.
In 1813 H tule of thanlit Ii> CHpuln Law-
rence for the «[itiire ol the Penooek
Doming np in the Stale Knaie, Ur. Jodaii
Qiiliicy olfurvd hu o(l*t«atod iwIutioD,
which waa adoplfd : " Kaolad, That in a
war like the pnwnl. waff^l "Hhoiit juati-
Aabta caiu*, aad pro««nttd in t mannar
iMlieatiaff tlial mnqncat and a»bitioQ ar«
It* real nudvtisit UDOtbeMnunganioral
atnl rrl^loua ptopla to exfireu any appro,
batian of milllaiy vbA aaral ti|i1oSl) not
{Bmedklely connsrlFd with tb« ilefenoe
of our aM.«aMt and aoU." In IB3t, when
tb« OfrpodBg |*rty had oUalacd control
of the Stati>, thia iMnlntton, by a patty
rota, waa enlcrrd to bt eratfd (hMn tb*
jonraalof theamale. Lifeef JoalahQuin-
cy, 39i. Olhar pnxedrnti will W fi>n»d
rtferred to tn the Can«trwiJM>al Debstt*
La 1887. 8m ibal la WUkaifa Cai^ 7
Hahan'a Eo^d, 188. C.
610
CON3TITCT10K OP THE trKITKD BTATES. [BOOK m.
§ 840. ThU clause in tt« actual form did act pCiM In Uie coo-
veniion wiihout some stniggle nnd eotite propoaitioiu of uncnd-
m«nl. Tht> tiriil pnrt finally passed hf a unaiiinioug vote; Uie
exception was carried byaclnse rote of eix StAles agaiiint four,
OIK being divided ; and the remaining claiiae, nfter an iucffe<:tual
effort to strike out "one-fifth," and insert in its Htead "ifei-ery
memlier present. " n-as linally adopted by aiinanimoua vot«.' The
object of the whole clause ia to insure pnblicity to the proceedingg
of t]io le^slatui-e, and a eorrcapondent reBponsibilil^ of tlie mem-
bora to their respective coDBtitucnts. And it is founded in sound,
policy and deep political foresight Intrigue and cabal are chi
deprived of some of their main resources, by plotting and dtnis*
injf meaauroa in aotrccy.' The public mind is enliphtcned by en
attentive examination of the public measures; imlriutiuu and in-
tegrity and wisdom obtain their due reward ; and votes are ascer-
tained, nut by vui^uc ounjecturc, but by positive facts. Mr.
Justice Blackslunc seems, indeed, to aupjMMti that votea openly
and publicly given are more liable to intrigue and combination
than thuHC )civon privately and by ballot. "This latter method,"
Days he, ^may bo ser%'ioc«ble to prevent intrigues and uncon-
stitutional combinalions. But it is impossiblo to be practised
with 118, at lea!*! in rhe Hou»c of Commons, where ever>- member's
conduct is subjoct to tho future censure of his eonstituenta, and
therefore should be openly submitted to their inspection."'
§ 841. The history of public assemblies or of private vote*)
dm-s not seem to confirm the former suggestion of the learned
author. Intrigue and combination are more commonly fncmd
coniiccf*d with secret sessions than with public delmtea; with
the workings of tho ballot-box than with the manliness of mm
voce votes. At least, it may be questioned if the vote by Imllot
has, in the opinion of a majority of the American people, obtained
any decisive preference over riva vo^e voting, even at elections.
The practice in New England is one way, and in some of ihe
States in tlie South and West another way. (a) And as to the
' Jnonul <ft lb- Canmitioii. pp. 21», S13. 2*4. 245. JSi, 573.
■ 1 TiKlitTi Btack. Cdmm. Ap|i. lOt, 2i» ; 3 WUwu't iAd. 197. 15$.
• 1 BUck. CoiiuD. 181, 182.
<«) Tortngbybaltot hni>wMatl)riial. EdkUikI vm (^TnM ia 1873. Be* X«w
nn*l In tb« Daitol Sum, vurft in W- AoMrkan Cretafwdii. «iL ISTS, an.
^datita btdlM, aiut iu iatradnetiaii into " BaUoL'
I
CR. Xtl.}
PBIVILGOES OP C0NGKE8B.
611
votes of rcpresentati^x>a and sonatore in Coofcrcsa, no man hus yet
been bold enoufrb to vindicaUi a soorot or ballot vote, as «ithor
moiv itiifc or more wtsf, mure promotive of iudcpcndc-nco in the
members, or muru beneficial to thi'ir couMtituvtit^ So long^ aa
known and open reaponaibility is valuable as a cb<!ck or an in<
centive amonif the representatives of a free people, an Imii! a
journal of their proccodinpi and their votes, pabliahed in tlie
face of the world, will continue to enjoy public favor and l>e de-
manded by public opinion. When (lie people become indilTcrent
to the acts of their reprcaeututives, thcv will have ceatted to take
much intereat in tlic preservntiuu of Oicir liberties. When the
journals shail excite no public hitereat, it will not bo matter of
surprise if the Cooatitution itself is silently forgotten or delib-
erately violuted.
I 842. The restriction of calls of the yeas and nays to one-fifth
is founded u|Km the necessity of preventini? (-jo frequent a recur-
rence to tliis mode of ascertaininf; the votes at tlie mere caprice
of an individual. A call oonsmiies a Kivat denl of time, and
ofte'» embarraas^'S the just progress of beneficial measures. It
is said tu have been uflc-u used to excess in tlie Congress under
the confederation,' and even imder ll>c present CunstitntiiHi it is
notoriotialy used ta un oceiiaiunul annuytinco, by a dissatisfied
minority, to retard the ])a8auKe of meiiaurus which are sanctioned
by the approbation of a strong majority. The clieek, tlierefoto,
is nut merely theoretical ; and experience shows that it has licen
rcsortod to, at once to admonish and to control memlMTS in this
abuse of the public patience and the |>ublic indulgence.
§ 848. The next clause Is, " Neither house, during the itession
of Congress, shall, without the consent of the other, adjourn for
more tlian throe days, nor to any other place than that in which
the two houses shall Iw sitting."' It la observable that the
duration of encli session of Congress (subject to the eonatitu-
tional termination of their official agency) depends solely upon
their own will and pleasure, with the single exception, as will be
presently (teen, of cases in which the two houses disagree in re-
apert to the time of adjournment. In no other ease is the Pres-
ident allowed to interfere with the time and extent of their
deliberations. And thus their independcnec is effectually guarded
> 1 ToiJc. nUek. CMBn. App SOS, 30<L
■ Smi Jovm. of (TeoTMitka, S19, SH. Sm iIm 3 EUlot'* DcfailM, STe, VI.
612
CONSTTTCTIOH Or TBE DKITGD STATES. [BOOK Dt.
^ainat any encroachmont on the part of the executive.' Very
different ia the sitoatiun of Parliament under the British couiti-
tiition: for tho kiti)^ mu}-, at any time, put an vu<] to a iK-ssiun by
a i>rorogation of Parliamvnl, or terminate iht' fxistencc of Tar-
liament by a dissolution and a call of a acw Parliamcat It b
true, tliat oac-h houtM,- Itas authority to ndjoum itxelf acpAratcly,
and tlii» is uooiniuuly done from day to day, and sometimes for
a w(Hik or a month together, as at Christmas end Easter, or upon
other |>art)cular occasions. Itiit the adjournment of one hoiis«
is not tho adjoiimment of the otlier. And it is usual, nhen the
kinjr signifies his pleasure, that both, or either of tlic houses
should adjourn themselves to a certain day, to obey tlio king's
pleasure, and adjourn accordingly, for otherwise a prorogottou
would certainly follow.*
§ 844. Under tlie coloitial governments, the undue exercise of
the same i>ower by the royal governors constituted a irreat pul»-
lic gi-ievancc, and was one of the Dumeraua cases of misrule u|ioa
which the Declaration of Independence strenuously relied. It
wan there solemnly charged against the king, that ho had called
together legislaliye (colonial) bodies at places unmual, uncom-
fortable, and distant from the repository of the public records;
that he had diiwolved representative Itodiea for opposing his in*
rasiona of the rights of the people, and after Ruch dissolutions be
had refused to reassemble them for a long period of time, ft
wan natural, therefore, that the people of the United States
should entertain a strong jealousy on this subject, and should
interpose a constitutional barrier against any such abuse by the
preropative of the executive. The 8tato constitutions generally
contain some provision on tho same subject as u security to
independence of the legislature
§ 845. Thi-se are all tho powers and privileges whieh are ex<
pressly vested in each house of Congress by the ConstitutioiLj
What further {wwers and privil«^(cs they incidentully
has been a question niueh discussed, and may hereafter bo open,
as new cases arise, to still further discussion. U is remarkatde
that no )>ower is conferred to puuiflh for any contempts com-
mitted Against either house, and yet it is obvious that unless such
> t TttdMt'* Bladi. C<aiun. A^ M«, SOT.
* I Black. Ccunn. IS* to 190 ; S VUmo^ U« Lmt. Ut, ItS : Cdcd. Dig. p^li».
mini, L H. K. 0. P.
PBIVILEGeS OP CONGIEESS.
613
a power, to Bome extent, exista by implication, it is ntterly im-
possiblo for either house to perform ita cuDstitiitional functions^
For iiiBtun<.-(.-, how is vithc-r housv to oooduct ita own deliberations
if it muy not keep out or expel intruders ? If it may not require
and enforce upon etranf^'rs silence and decorum in its presence t
If It may not cnuble its onm members to have free iii)rr<^«s, egress,
and rcirress to its own hall of Icffislatiou ? And if the power
exists, by implication, to r«<)u{rc the duty, it is wholly nu^lory,
unless it draws after it tbc incidental authority to eomjM^l obedi-
ence and to pimish violations of it. Ithas heensugge«»ted by a
learned commentator, quoting the Inngiuige of Lord Ilacon,' that,
OS Qxccptiun strenjithens the force of n law in cases not excepted,
BO enumeration weakens it in c««a not enumerated, and hence he
deduces the conclusion that, as the power to punish contempts is
not among those enumerated as belonging to either bouse, it
does not cxiBt,' Now, however wise or correct the ninxim of
Loni Bacon is in a general sense, as a means of interpretiition it
ll not the solo rule. It ia no more true than another miixtm of
ft directly opposite character, that where the end is rctjuired the
means are, by implication. Riven. ConRTcaa are reciuircd to
exerciae the powera of legislation and deliberation. The safety
of the rights of the nation nr<iuirea this; and yet, bceause it is
not espresBly aaid that Contrnras shall potuesa the appropriate
means to accomplish this end, the mejiiut are denied and the end
may be defeatctL Does not this show that niU-s of interpreta-
tion, however correct in a general sense, must admit of many
qualilicationa and modifications in their application to the actual
business of human Itfe and human laws ? Hen do not frame
constitutions of government to suspend its viul interests and
[lowers and diiliea njmn melaphyaical doultts or ingenious refine-
menta. Such instruments must bo construed reasonably and
fairly, according to the scope of their par}KMos. and to give them
effect and operation, not to cripple and destroy them. They
must be constnked according to the common seniie apgdicd to in-
tnimenla of a like nature,, and in furtherance of the fundamen-
tal objects propo«ed to bo attained, and according to the known
practice and incidents of bodies of a like natnre;
§ 846. We may resort to the common law to aid na in Inter-
1 Advuetiiwnt ot lyarnLoj; ; I Tuok. BlMk. App. tHO, not*.
* 1 l^ckM*! Bbck. 300.
614
coKSTmrrioN of trb tnoTED stxtes. [book m.
preting such instruments and tlieir pow-ura, for that Ihw is the
common rule b; whicli all oiir legislation is int«r)trcte<L It i»
known and acted upon and rcvered liy the people. It furnmiw<«
priuoiples e<|ually for civil and criminal jii^tic^ for public privi-
loiiott and private rigbta Now, bj th« common law, the power
to pimisli contempts of thiB nature belongH incidentally to coorts
of justice aiid to each houKcof Furltument. No man everdoubied
or denied its existence as to our colonial oaserabliefl in geoenl,
whatever may have been thoii);ht aa to particular esercisws of it'
Nor iB thia power to be viewed in an unfavorable lipiil. It i« a
pririU-KC, not of the members of cither hoitiie, btrt^ like all other
pririlcgcH of Congress, mainly intcndc-d a» a privilege of the peo-
ple, and for their benefit.* Mr. Justice Blackslmte has, with
great force, said that "tan's, without a competent autliority to
secure their administration from disobedience and coitt«m|it,
would l>o vain and nugatory. A power, therefore, in the supreme
courts of justice to suppress Buch contem]tts, etc., results fnua
the first principles of judicial establishments, and must be au in-
separable attendant upon erreiy superior tribunal."' And the
same reasoning has been applied with equal force, by another
learned commentator to legislative bodies. "It would, ^* «•>->
he, "be inconsistent with the nature of snch a body to deny it the
power of protecting itself from injury or insult. If its delil>era>
tions are not perfectly £ree, ita constituents ore eventually in*
juR-d, This [lower has never been denied in any country, and is
in(;id<;ntal to the nature of all le<;>slative bodieo. If it posseHBes
such a power in the case of an immediate insult or diaturbance:,
preventing the excri-'iso of Ua ordinary functions, it is im)Kwai-
ble to deny it in other caaea whicli, althoujiii less iuuDOdiutu or
violent, partake of the same character by liaviui; a tcnd«Dcy to
impair tlic firm and honext discharge of publie duties."*
I 847. Tliis sut>juct has of late undergone a great deal ui dia-
cusston both in Kngland and America, and has finally ft!ccived
the adjudication of the highest judicial tribunals in each conn-
I 4 BUi^lcComm. 283,281, SSS,SMi 1 Blxk. CWimi. I«1,I«S: Com. DIk. /Hrfi^
meni, (i. 3. S : Burihtt >. Abbxt, 14 Fjot. R. 1 ; Bunbu v. Colianu, U E>a. K. US ;
t.v.6 Uotr. Put. Cuo. KB. 199.
* Chri>liui'» Now. 1 Kuek. Camm. 161.
> I n\hck. Comm. sen.
• R««lcMitlMC««ll»ti«tt,clt. 4.pi4ai 1 EMtiCcaiuii.(ldedU.)XMt. II. |
ni. S3S.
CH. XII.]
PRITILBOES OF COKQHESg,
«16
try. Ill each country, upoa the fullest coitHidoratiuii; tbc rcmiU
was the namf-, namely, that thv power did exist, and that the
lej^iiilttlivi! body uaa the |>ruper and <'\<;luiKive fonim to decidu
when the c-outompt exiMto<d, and when thore was a breach of itii
privilege*; and that the power to puninh followed, aa a nece«Mry
incident to the power to take cognizance of the offence. ' The
> ThelMnwdrMdrrbieflemdUBiiiiImv. Abbiilt,UF,a*t,B- l-.Bunlplt cCoImM,
14 EUI.B. Via: *^«. t Oo*. Part K. 14^ lWI;aiid Airinwo r. Dunn. 8 Whrit. A.
S04. Tbe qnortkiii u aUo uncb diwiUHit in Jtttrnoa't UbhiuI, } t, fctid 1 Tuck.
BUok. OomiB. Apji. nott ff. SOO M SOO. Sm kIw I Bluk. Comm. 144. lU. Mr.
Jclbiwn, in hi* Manual d 3\ in ouuKtntiuK on tbe nue of William Diiaii* for •
[■olitiiil libel. hiuuiniDKil uplli* iTMDoinjton nqbiide wttha tn«nif««t louiUigi|^nit
the fotrm. It pmcntB the Mnngth o4 the arKWDcnt on tliat Mb, •nd, on thmt Mwnnt,
deacrvca to be cited U Utgt.
" In d>rb*(iii|i the URaUljr of tlib ofibr, tt wm Inaliud in uip|nr1 of It, that tfrnj
Diiu, by th* law of Batnw. and >«wy body of in«n. [infLiMc* the right of wIMrfwiee ; thrt
all public fnuvttenarimuvNHntiitlyiiivmlfd nllh ttw [OTen of tglf-prMttratton ; ihtt
Ibcy have an inhtnnt right to <lv all acta nermMry to keep thFniw|v« in a condition to
diKbaige tbe triutioonOdod t« them ; that when«Ter aalhoritiei arc Ktr<n. the mcaiu of
carrying thani Into azoeutioa an (inn by necHwry implication : thai Ihn* *v aro tlia
Brilith Paillamvnt mwcIm th« right of pniil>ihlnK contmiipbt ; all tliv t'isia 1t|p«Iatnna
axorciae tho aamB povpr ; and every court don tlie mmf ; tllat, if wp have it not, we lit
at tha inerey of every intradtr who may enter our iloon or |(all««y, and, by noiac and
tDBMlt, tvadvr procaolliig in biuinau Impiwticabia ; that if our tranijnllllty ia to ba
perprtually ilittDibed hf atnr^afu dafaiDatioii, it will ui>t faa poaaibla to exerrloe our
iinotiona with the leqvbitaooolnanaiidilcliWntinn ; and tlial wemuit Ihcrefonhave
ft powtr to puniib theae dartnrben of ouc p«i's and procndinga. To thU It vaa
•UMrad. that lliu ParllanHnt and courta of England liave fogniuiiiix' of coniampta hf
tha axpnaa ptoriiioai of tlivjr law ; that the Stale Iq^Ulatvi ham iKinnl autliority.
beua«M ihotr powen ale pltnary ; tli*y rcpm>»iit lliuir i^itinlitiiouli cuiiipti-lrly. and
poMCM all tlwir power*, except luirh a* tbeir i'oa>tilulioD< hare Fxpn'Mlydrnie'l titcm;
that tha courta of the acvetal Statta have the aauie power* by tlie law* of Ilicir Stalaa,
and tlMaacf tlw failttal fanrwrnaiit t? tho aam* Siaia lawi adopted in ca«h atalt^ by a
lawof Coogreaa; that &on««f thaaabadiaa, Ihorafoi*, derive ihow powr-n (mm natural
or III I i—ij light, bnt from exprtla law ; that Cnngma harr no tU'h nalutal or Bacaa-
atry power or any power*, bat mdi a* are given them by the Conslitnlian ; that that
haa (tivan ikrm. directly. axeHiption from penonal arrest, exemption from (innilon
abawbtn^ for vhat ia Mid la thdr honaa^ aad powar Mrar thaii own UMmbae* and pra-
«a«<li^:* -, (or tliiM no fiirtbw la> ia ■iciw«y. tiia CMrihutioii bring Itw law ; that,
moreover by that anirle of the ronilitution whkh aalbeHtn thpm ' to make all hwa
ateeaMi^ and proper for carrying ialo exe^ntioa the power* vnteil by the Conttitottoa
in Ataa,' ibey may pravid* by law lor an undiiiurbnl eierciH of thtir fUBCtloni^ for
""IBp*". (v the panltlMnant of oonlempta. of aHrafu or luamlt in their piaaf nee, etr. ;
bat, UU th* law Iw niaiU, II <loe* iiol ejltl. and dom not *il>t froni Ibrir own arglrct ;
that in tba maan tin*, howtnvr, Iheyare not untnMerted, IbeonlinaryBngiilrateaaad
eonrtaof law being open a«dcaapeltnt to paniih all unjualiliabtedHlurhanoetordrta.
mationi ; a»d even tWirown aetgeant. who mayappaiiildefiatiiHarf/iMniiloald hbn,
it mmi Ut amall ilMivfaaa<«a ; Ikat in requiring a prerloaa law, tb* OoaftUalton had
616
COKSTITUTION OF THE DNITED STATES. [BOOK UL
judgment of thu Supreme Court of Uto United Klah-s, in tlic caist^
aHuded to^ vontaiita m eluborate and exact a oonsidvnitioD of the
whole artriimcnt on ouch side, that it wilt be far more ftuii^ftic-,
tory to f^ivu it iu a note as it atanda i» the [triuled opinioti, (lian
to hazard, by any abridgment, impairing Uie juat force of the
rcuaoQing.'
iv^id tHtlieluvMiliilityorthocItlan, umtl Mof tiltaNibwiMvshouUaMbaiHtl
in the rfgulai fiinn u[ a bill iiud «1 Iou liroail {irivU^ow il may bxbnkinl b]r Ih* otbtV^
•adbolli by the PrsidiDt ; uidtltatalhcUiibtSBKpnmndfftXtd, tbittiluaiMwUlkaa*
liow b> mvoiil otfcuoi;. lint if ouo bnndi may uhhiiib ita own piivilcgcs witboot e<m>
Wil i If tt may do It on the tpat of itw ocouion, cooomL the U> In it* own bnut, i
aftar tb« bet committal iiulu li« nuituo ^Ui tlio U« umI tb* jui^uMvt on Ihst bet |
if tha «ffenoa ia lu b« krjil uiidi<lin«il. and to b*t ikclanO only B n luta, and ■ccontia
t« tbe [HBitM»<irtli« nioiumt, and Uieirlw no iimilatten «itber in tbenuuuMrori
are of tbe punUbment, tl» voniliiian of the dtiam will bo pBtikma iMdcvd."
Thn miuiiiing of l.onl Chief JuilhrEDn Ciivy In Bex*. ltrMaCraaby.8 Wibon'aB. II
uij <>I Lord Ell"iil<inHiKh ill Kiinli'lt r, AUutl. U Kut, B. I, U txoaidlngly
uid itriktntc ag&iiisl that favorvd by Mr. JolforaoiL It ■liwtmai aad arill reqoite na ■!•
Untim jxriuul. Sea uUa BurJctt v. AUntt, 4 Tanut. Et. tOl ; t Dcnr'a Pari. Kep. UL
> It M DocaaMrytA pnunbn that tlinHiiiEwu brnHight for falaa ianiriaoiunttttliyi
p*ny whohad bMin amateil uudur a iwniit of tliv i>|M«k(ruf Iha Hooaaof Uvpfaaanla-''
tjrea, by the HTgrsDl-at-ainu, for an allcgid oontcntpt of thv Hoiias (aa altfmpt to btilw
■ member}, uid the cauu wu dedded upon a demurrer to tha jnMifiutioD act up bgr-
tbooOicar. AfUr a pi«liniiriary rnutlc U|>uu the nnp uf tha •tjammt t>y tli«<
Hr. Jii»tii.'e Juhiisoii, in <l'.'livi>ring the ojanioD of tbt court. pooMded aa folbvwa : —
" TIio plcxlingi havt nafrownl Ibcm down to tho ilmfila intohy. whether tbe I
of RaprnKnlativci con tnlcc' cogni^uiee of oontanpU committad «)cdiuit thunart*
undur any cirPumatancMl Thn diinH uoiiiplabM of in* anUaiiwd ttadnr a
iaaupd to uim{H-1 llio party'* appvanuce, uot for tlia wtual infliotiaa of puniahmMt I
an olft'dua comiiiitted. Yet it nnnot be itenied, that tbe power t« inMitirte ■ ]
tion muit be dependent upo« tbe power to pvniih. If tbe Houm of Rep
[KWHMUwl no authority to puniah for cotitempi, the InlttaU^ procM* (aniad ts ika a^'
•ertion of tliat authority inwt ban been lU^al ; tbm wm ■ want of jniiadietion lo
juatify it.
"It iiotrtainlf trna. that there ianopowcr ^venby IbaOMMtUatioa loettharl
to punish foi contempts ett^rpt when comaBltted by ttwir own awtnlKn. Kof doM dw"
judicial or criminal jiower flnn to tha llnlt«l SUU*, in any pari, Nipewxaly extend W
tbe infllctlanor piinbhrncnit for oeoitflmpt oftithnr houae^eranyon* (O^nliaalabnneb-j
of the ([OTemnimt. Shall we, thtrefocv, d*ciclo that no anrli power tsista t
" It U I^l^ lliat such n power, if it «dala, mtM be derived fnini imjiUtation. and tha
geniux and nfiiit of our innitntkow uc boatik to tbe eierdM of iMpHnd poweia. Hb>I
the fienltiea «f nan been «om patent lo lb* (tamlnx ed aiyxtemof jgnTemrn'
nouM hara left notbinH lo implkatioa, it taanot be denbtad that tW eflnrt <>
bwu moda by tho fraoMra of tbe Coaallliitbia. Bat wbat U the faei f Th"m u mt in
the wbole of that ndndrahk ln*lram«nt ■ grant tt powoi whioh don not draw after it
olbtt^ not expmenl. bnt vital t« tbtiresnciae ; not aatwtaiitiw and fadcfcniknl, ia-
dtad, bnt BQXiliaty ami eabonltnatn.
'Tbe idea la utofiu, (bat gOWiWMBt eaa exlit without ItaTlng tho exetvlM ot dta-
FRIVIUOCS OP COKGRESS.
WT
§ ^8. This is not the only cajte in which the House of Be]]-
resoatativ«g has exerted Uie [lowcr to arrest and puiiitili for a oud-
crctiMi •omeo'bFn. Public •ccaiily ^ilnit Uu> aboM of uwh ill>«rHi<iii miut mt on
twpoBtlUUtir, and itoMl KppaaU to pulilie >i)|"v''*>''i'">* Wb«re all yamrt ia dsrirol
troui tho paojilis ami public tnnatiaaarim. al ahurt uilflrroli, ilcpoiil it al tliti bH of tlie
pMi[ile, to be raiumn] agaiu only Al thur will, indirjdual Ttan may be alanacd by tho
tuoUBlcraof ima^inalioD, but individual liUiiy can be in llttladan^.
" Ha ana la lo Tbionaiy aa to ili«|>iil< Ihn amrrtlon. thut th« uU anil aad aim of all
our Inatitiitinna U tlio wfatf and baf>i>iii««v of tlie citiuii. But the r«Ulion bttwwu Iha
action and the end is not alnsfH bo direct and pUpable m to atrilu tho ejv of orcry
ubaervi^r. The adiuica of goTonuiieiit ia tho moit abatmac of all icioDCoa ; if, indoad,
thai can ba called a aciraica ahlch hu biit Um Itxnl jirinclplM, and |nactlcaHy Moaiala
In llttla mon than Ihn exrii-iiw of a muud diicntloiK apptiad to Iha •xi^pmeW* of th«
Mata, aa they ariw. It ii the •dcncc of npcdaunt.
" But if thera ia one maxtin which noccaMrilj rida «ror all othcn, in tho fnetioal
applinatian of (Orammcnt, It 1» ihat the public ranr.tlonarin moit bo loft at Ubtttj to
•nrdiotha powrraiiliich tlii< |>ruj<](< have intruxtcd tii tlu'iu. TlifliiUanal and dignity
of thoae vho rrealnd thrm rnjuini tliocicrtion uf the powrra iiiilupnuable to tlio allain-
ment of the endi of their crmtion. Nor ii a cuual coaQiut with tho righta of paitiuular
indiriduala any nasuu to bo urged againit the eicrciae of inch povcn. The tcntch
bi'jirath tha i^llom may ropinn at the tutc which await* him ; and j«t it i« no Uia
nttain that lh« latta uiidi't which hn anlTon wi>i» madn for hi* aoturity. Tha uanaaon-
able niuriDDri of imlividiiaU a^inxt Iha mtnint* of tocirty liate a dinct Uoitucf lo
produce that wont of all dtepotiuti^ which nakta every individual the tyrant ovn kia
i>aiKlit«r'« righta.
"That 'tb(! aafoly «f the pM]i|* l» thi> auprrmn law,' doI only comporta witL, W ia
indiapenMble to^ tlic ncraina of thooe powm in thrir public fnnctionariea, without
whioti that aafoty eaniMt be gnvdoL On thu prindpls it ii, that oourla of joitica arc
unlvwMlly ac^nowladjiad to bo Tested, by their veiy crtntion, with pawn to impoae
uiriicv, KHpMt, and dacoTXini In llmlr p>«*c»c*i and •nbmiMlon to thalr Uvt(<:! nia»-
datc^ and m • aofoHary to thii propontlon, to pnMm thnnaaltaa asd thoir uUiom
from iha a|q*Mch of inanlta or pollution.
" It la tma that the contta of Jundce in tha United State* an veatrd, by exptaa
utatHt* p«<OTition, witli jioavr to Aue and Inprfaon for <ual(B|>tji ; but It don not
follow, frumthiacircumEtaDce, tltal th«y wonU nut haraCMfciatd thai pwwtc wllhoot
the aid of the alatotr, or not in ca«a^ if uwh aboold oocur, towliich auch atalula pro-
tldoa mtif not extend. On tho contrary, it ii a legialalirc anortion of thii right, a*
InddeMB] to a pant of jodidi) power, and can only boconMlcRd eitheta* an inuanoe
ol ah«ndaRt tautlon, or a ttKtilaiiT* >l«oUratioii, that U>> power of ponUklng fur con-
tonptaihall not extend beyooil ita known and aokwivledgnl limitaoT ins and imptia-
onment.
" Bat It la oontendad, that if tki* power in th* llanafl of BtprtMntativra 1* to ha *■•
earlrd un th* plaa of M«aatiy, the givuad la too broad and tho raault too indallBil* j
thai tlio *xa>.'»lirii, and every co-ordinate^ and evt« aubetdlaatat bnach of the gorara-
mrnt nwy renrt to the aaoie JattHlcation, aad the whola anuna to tbaMMJvea, in ttie
axirdMof thia pown, tbe moat lyraankal lioeBtloiMnHW
" Ttria U nniiiiMitionaUy an evil to be gnarled a^nat. and If tha doctrine maj h*
puahed to tliat extent, it moit be a bad doctrine, and It Jnatlj draouMod.
" But what la tbt alieraativ* r Tho aigsment otirloualy iMda to the total aaniUk-
COKSTITOTION OF THB DSITED STITES. [BOOE Dt
tempt committed wiUiin the walU of the Ilotue. Tbo porcr
was exerted ■ iu the caite of Roliert Randall, in December, 119a,
UoD of tlic poacr «i tbc Howo of Rcptwenutivca l« goird itatU tniia cobUnpci ; wd
lwv» :t eipoand to tvcry Indignlif and lBti7ni|itiiiD that ladfooB, ocpricc^ or ■«■>
coniplrni^y mtf niodLui» tffiitiKiI It. Tlli* mult ii fnugfat atth t«o mudi kliMUditir
not 1i> bring liitu Uuiibt tlia taujiiln««a of any ar]piaimii ttvm whkli il b drriTcd. nut
* itvlilwniljvu aBxrmbly, flathtd will) tbr iiMJ«>7 ot tlia {Moptf, aenl chuxrd vitk the
con .if nil tliat U iltar to thau ; MmpoOTd of tlio HHNt ditdBgitUwd dtlMas t^"*^
and dinwa tognthar rraiu tv^rj iinuter of a gnat naliaa ; whom ifeUfaantio«> tn
n<}uinil by pubUo Ofnuion tv b« eoodvctad uniW Ac nv of tlio pabUc, ui4 lAmt
dMltion* mtUBt b« dotbed with all that laiiMiljr •hicfa antlnitud cnnHilww t» tk&
wlad«ai and puritj can incpin, — that (udt aa if bly iIumIiI sot fcmrm tt>* jnn*
to iu]>pi«H niattm or topd Jniult ia a mpfMMtioii too ailil to be h^khIbL Aad
an.-or<!Jiigly, to stcM th« pmnii* of thaM ooiuManUotta, U ba* baM ar(wd. tk>t tk*
tight of Uie mpvctire houM* to cxcliufc tnm tbcii pnaMC^ and tliali afaaolsl*
within thciT ovn wallt, earrr witli tbtao ths right to puabk t»aiUmf*a
thflir |t<>a(fi(» ; wklU tha abaolata tajtUklin power gmn t« CWBgnija witUn tU*i
triot «imUh tbtoi ii> ptortd* b; Uw tgiiiMt all othar iiunla ii^iBat wkkh tbnc
uy arriarity (or praTiiti^.
*■ It b to be ohwrved that. •» br •• tbc iam* of thi* mom h fni|dl(ated. lUi aqp>-
tnent jialdi aH right of ibe (JaUitlir tn arror to a daciMa ia bk b<rot ; fbc, «•• cmbW;
ftoH tha plcadiiigi^ bnt tlMt thi» niTBiit 'mmI Cir •■ otfmee eanuBhUd in tha iMM^
dlala pnaMc* of tb« Howe.
" Vm b it itnoHtifwl to nocka what dtOenltka the H^tiaa of thh tight In thi
Bowe <^ Reptwntatim teniflai 1^ aha It b twdteod, that tha cooeMin of lb*
pxnr, if riodtad withia theu v«U>, iiliniiahw the pmt gnMiub at tha aigaiailit.
to vii L lb* want of aa aiyw grant, aad the UBRrtiktal lad oaiMaal aainta of dM
pown- hen irt ofk For why ihoMld tha HoMa ha at invrty to eserdH aa
«■ n-H— 1««^ imI aaJ^ned powar witUa tWir wbDi aay nw« thaa ■Itheiil
ir tha aadc«j with taiiTMoal rt^t aod powv be MaarMd to. It wtn foaeh
tbu to eidaauD i aad tt ivfuino no endMnoM af wagiaatiMi Iu tabiUt th« nJlw
fame wiaain^i* w whk* ari^ iteah bum mA m itiiLlida, imfamtvftA lh>«
<f a MibMBttf* MHBUy.
"VorwavMlMrrilMtfaobtMMUIr mBmwI bfCMaRl^ t» tiafr
pqiaw wiikia tha 4iMjBt That powo»ay. ii li i L be efftM m taaay |
«M hiMJiJ bj tha Ctertilatk* ta iMiaJ «• aaay pufpnw hiBifiawlJi ta tha
Motrilj Md digailr of tte fmtnl (MntaaMt; b«tkt»«a pn^Hn af a
|tvra aod tiMnt ^KaotB' Ihaa Iha iJMlw wWifc May ta ^aawbawJ enntiMfW,
nd whkh, bos tMr <«t Mtan, afaft af m faMha litairtin JwikU cwftf
I
«fll Mt aiWt of ^ OHtBriaM wfakfc IhM
«4rM»dbrpBal«hi
«Akh tha (fiibrt «**a*Vl M^ be
» But «M>>«gh Aa V^avta hM
Mcrt and art b* aA(taii& Xertikaa.
■Waaw wnwaiwaih»faKtha«l>wttowhfcM^^iHh*rag|iwarrf
a bgiiklii* art. B^ be ouriij. Oa thtf Migaot tfta haaaifc it thrir
fcawdiathaiiiTiiiiai of Ifci Cbiatftatb*
-TbaiaMBt^naetfaalfcwbMh tW aMMtiir cbt
BymtarfWTwwNIMMrl?!
teha
CB. XII.]
PKiriLBGES OF 001
819
/
for Ml attempt to comipt a member ;* in 17d6, in the case of
■■- 't a cballongo gireu to it member, whicli vus held a breach
^libtnttrc UKiahliea of Uu Cuioii Buy MfOin* mi Mun-iw oa the iitinuijile «f milt-
"AaaHagjmA Die Minn of Um cue fiimkh the anircr. — ■ liU kaM fvmUt fmar
aJi^anti to IA4 md frrvfr/Kd ; ' which i* the powir at iai^ntmaaaA. \\ nty, at fint
vivw, aitii Uam tbv bictor; of the jiiutkc of an k^UllTn bodiM, b* lliaiii^t t« 01-
UtA to Mbtt intirtloM. But tynry Mlwr aill b* found Vt bt Bi*ra oDMiiutMian Ua
CDallnMiMait ; mum oominilmeiil klan* ia the ■ItcniatiTg, when the iadivhlual ptovM
MBtOBudan*. And enn to tb* rfomrini «{ impriManMBt • ptrtad i* iupned \>y the
nwara «f UiingB 1 wnee tbe oxiitciiM of the pawn thftl InpiitOM I* indiifWf hie to
ill oeotiiiiMiiCD ; BuJ nlthough die U^altv* pvww oenlfainM pvprtoal, ike tigbUtin
hodr tmttt la abn on Uh Bonunt «f iu adjoanidaiit or ptiodinl dbtdotlon. It
tallow* that bofnlMftiiii^nt mutt tmiiiiMte with that ailjouniMtut.
"Thia Tiewof theentjmt DMHHrily itlaboowditotfar rsfreue of ■ Mprin, whkli
bu MonetiiDn di^t™'*^ dcHbenltTo aormfaluu, when nnilar ibe inAuuice of sttoog
puMOU or »idt*l leeikn, but the hiM«i>te« of whidi Iiato long uliioe rtBainnl on
leoanl oii1;a« hletorlnl fecbi, not h fVKwUnti for IniSUtitin. In Iha priMut UxoA
•nd MitM itlatuof EiikI"I> institutions, then uuomuraduignof thvirbtiog tSTintl.
prehabl}', than in our own.
" But the Amertcaa Itf^tluin bodin hare nerer jMoaMMd, vt fcrttnded to, the
OBnipotcno) vhlvh conOitulse th« lanillB|t faalurn in ttw l^lalMlM ausmhlf of Gmt
Britain, tBil «hich Tiny bar* Inl iii-<-iu>iaualIy I* th« «x*TGhie of eapriM, uniUr the *|>«-
OlouB afipeannue of m'r[l«tl nrwuturnt.
"If it be inqnircd what Mcantf b thcn^ (hat with an olHcer avowing hinuwlf dc-
TMad 10 their will, lh« Kounnof R(<iimwBtatiT««wlll(onnnr iti> i>iinliiliinK prnmr t> iha
liaits «t i»|irisoninrnt, uiil ijut ymh rt lo tln^ inlliclwu of e<>r|Kii<?iil piintthintut, or
Oreo dtath, and vxriviw) it in cajwaolTnliBg the libnty of tiprri:h and uf the pna ;
tbe trplf ii to be found in tlie Mnaidenition, that the Coaililution was farnwd in end
bt an adroBcod ilatc «( aocitrf, anil ivita at nveTj point Od reraind a|iiaiaDe and Rxed
Mraii. )t it not a new cmtiov, hot a conibinalian of ^l>tln^ nuteriah^ wbee* ptnp-
«niM and stlribotM w«m riMiliariy umivtsUiod, aad had tmn d«tmuin«>l by nrlt-
•nled nperimenla. It ie not. Uwrefore, naaoniiig upon ttungi at tliey an, to aepfoe*
Alt any delibcntire awembly oeastltutoil nndcr it would ««er Haert any other tight*
and powan than iboaa which had barn talabllahed by (anf |>nnk<% and temttitA 'bf
pwbhc epiaioft. ll*Un«4ioly, aluo, would be that stAte of dittrati whkh rstta not ■
hope upaa a vml influimoc. Thi> mcnt aloolwte tynuny OonU not uibdat where men
mold M* be tnwtnl with poavr, beiraaie thoy ini||fct abnw t^ iwndi loa a nwrniirt,
«trld> hM DO otbct beni than the aound monll^ tnodtratioB, and ilia yood wn»of IboM
who conipnM II. lTnrca]ional>la Jeeloiule* not only Might ibe plsaMNi^ bnt dfawlv*
tlto wfy texlanc of eorirty.
" But il b anriMd tbat tb« tnftrence^ if any, •riitng nnder ttw C«n«litntie<i, ii ifpinat
the ox»n4H< of the powEn ho* aawrted by lli« KoBw of R*pre*«ftMlna ; tbat llin ai-
]itM* uninl of pewtts to panlah tMr nsmben nspcctitely, and to axpol th>m, by the
■|i|>liRilion nf a faMlUar muin^ iaiiaa ao fanpliMtioa ^mrt Uie power lo punish any
ether Ibsa tbtir own nenibFra.
" Thii argnnaeBt prama too lOMfc ; for ita diivet af(4leatloB would ImJ to the aani-
hilatkoi of almort eve«y powerof Congrea. Te atom if laws mpoa any aalyrat,
> ITMkM'aBlBek.Oamm.Aiip.tWtoSOft.iMte: JeOtnoB'e ICanml, 1 9.
■
620
CONSTITUTION OP THB DXITED STATES. [BOOK III.
<^ prin1ef(e;i(ii) and in May, 1832, in the c««e of Samuel
Houston, for an aasault upon a member for words epokivn in his
place, and afterwards printed, reflecting on the chai-actcr of
Houston.' In the former casv, the Uouiie punished the offence
by imprisonment; in the latter, by a reprimand by the speaker.
wltliuut tlie iHuicUon of imnbhuMnt, L* otwioiwlj InipOMibU- Yet thnv it an Kspnm
gtaiil or |wwer to puaiiih in «m« olan of (.'Htn lud onp obI; : >nJ ftti tho pranuhinf
power cicrcUcil bjr CoDgtiM in Miy cuca, crx«iit tboM wfak^ reUtc to piracf uid
ollencni mkinat tht kwi of nfttJoiu^ U dcrirod from untdiaktion. Xor did tlw id** n<r
occur U) any on* tbat tli« «xpr«M Rnml, in «iiii gIm* of cum, refsltnl Ilia MawnplkM.
of til* ]>uiiialung powpi iii itiy utiicr.
" The Initlt U, that tU« exercise of the pownv givm otbt tlirir om memben ««• «f '
nich u delicate natutn that it oouitiltitianal [MoriNoa bawimu noMMSiy to t— tt ar
commuaicatclt. ConMJtutcd, aa that body is, eJ tk« dtlcigataa af oa(if(darat«J SnXM,
aome luch pnyri»<on vw u«cmMry lo iplanl afgaluM tlMir maiual Juloui^, naa vterj
proM«dtn^a)^riBian]pniawUtiv«a«aUiiidinuUyalI«olUiabMm«irint«i«*taof tha
8taM whidli Mut him.
" In T^r ta the ingKeatioii that, on tlui Mun* fonndatiMi ti nacawfty vd^it la
nia«d a npantructara nf implinl power* In Iht vxacDilvty ajkd erwyoclicrdeisrtiitanl,
and avail aiiiil»l«riiil ullicvr uf thi< f^nvcmniniit, It wonM tia tulUdvut to atetrv*^ that
naithar analogy uur prrculcul wuiild nupiiort th» aaaertioo of siioh pi>««n in (aj
oth«r than a legislative or judicial body. Even ratrujiiiDn anywhere cIm woihl bm
Goutsmiiiatc tho loures of polilical lire In the rctireiniint of tha cabtnal, it la kol n-
fMcltd that tha axacntiva taa ba apiiroachad by iiidif[nily or intuit ; nor «a it vrtr ba
BCeaaanry to tlie»B(!UtiTe,oranyath«r department, to hold ■publkdelibsrattvsaaaaMa-
biy. Theie are not arKumenU : they an; visions, whii^h cur ifac ciijoymcait of nctaul
bleadngi. vith the nitack or (eint of the hatpin of iuotpnanon.
" Aa to thn minor jiaiDt* made lii thia c*w^ it b only naotnsry lo obstfra tbct Ibaa
U nothing uii tha f*o# of tliia iwori from which It «ii appaai on what andaMo Uua
warrant na uau«d. And wa are not lo pnaumr that tfao HouM of Raioaaantatlni
vould have inucd it without duly sitaUiahing the bet diaificil on tba isdivldat].
An<l. 01 to tlia dittance lo which tha procoa* ml^t mch. It U vary dear thai than
eibta uo naaon lot oonAninii It* opi-nition lo tha llmlla of llie Diitritt «f Cotaaibda.
AftwpauiuKtbowiliuutii, w« know nu buuiida Uiattan be pnwribed to its taoffe bat
tlioM of the ITuited Statcn. Atid why uliould it be reitnctol t« Other bmwdarlta I Sluh
an the limiu of tlic IrgiiUtinij powers of that body ; atid IhitlBbaUtaiit oTLaBiaiaaft
or Unise mny ai probably c.luir][o thero arilb bribtry and ooniiptlan or atlnnpi by
tflter to induce tlii^ cniiinili«ion or (ilhirr, aa lb* intuMlaal ei any olliar MClieai of tho
Union. If thK lucoiiv«iiii>ui-ii bu ur>c>Hl, ihr rrply ia obvioiai ; Ihnc t> no dJAoahy in
obaarvinj Ihal rMpwtful dcjiotliiiifni which will reu<ltr all appndieniianB i hiiiMirli ■! "
See ain Uei r. Braoi Croiby, 3 Wilsoo. R. 188. In the «anvKitiot> a janpnatiiou waa
nbwl* Mid referred ta the aclect committee appointed to drad tho Conalltutlon gtvinit
anihantj to ptuiah tor oontcmpla, and ennmaralinK tbr«. Tha oMBBtlttM nuulo no
nfwit OB iha aabtaet J««m. of ConvanUuB, SOih Aug. MS, Ml.
' Jel&rwa'a HmimJ, g 3.
* See tha Bpwchia uf Hz. I>oiidt>ige and Mr. Bargea on Ihii ocguiow.
{«) TheouBWUthatof JamcaGuDU. Soa AnnU* uf CangrMt^ lal Sen. 1th Osog.
Pk79e.
CB. Xtl.]
PRrviLEoes or oonorbbb.
681
I
.So, in 1800, in t)ic csac of Willioin Duane, for a printed libol
•gainst th« Senate, the pnri^ wu held guiltj of a contempt and
punished by imprisonment.' (a) Nor is there anything peculiar
in tlie claim under the Constitution of the United ^tatea. llie
Bame power han )>efin claimed and exercincd repeatcdlj under
the State ^rernmenta, independent of anv speciu) cotiHtitutional
pro\-iBion, upon the broad ground stuttMl bj- Mr. Chief Justice
Shippen, that the members of the legislature are legally and in-
herent); possessed of all such privileges b» are newssurj to ena-
ble them, with freedom and safety, to execute the f^>at trust
reposed in them by tlic body of the pt-«plc who elected thein.*(6)
§ 840. The |K>wer to punish for eontempta, thus asserted both
in England and America, is confined to punishment during the
session of the legislative body, and cannot be extended l>eyond
it.* It seems that the power of Congress to punish cannot, in
its utmost extent, pi-oceed beyond imprisonment; and then it
terminates with tlie adjournment or dissolution of that body.*
Whether a fine may not be imposed has been recently* made a
question in a case of contempt before the Floufie of Lords ; upon
which occaaion Lord Chancellor Rrougham expressed himself
ID the negative, and the other law lords, Eldon and Tentcrden,
in the aflirmatire; hut the point waa not then solemnly de4:ided.*
It had, however, been previously afhrmed by the House of Lords,
in the ca.4e of Rex v. Flower (8 T. R. 314), in case of a libel
upon one of the biahopa. Lord Kcnyon then said, that in ascer-
> Jonn. of !t(Mt«, STth tUtrh, IMO ; JHTonon'a lluiuO, f S. 8m iIm BunkU
*. AUMt. 14 bat. I.
* Boltan V. Uattin. 1 D*ll. R. 188. See alici flouw of DelegitM in I7SI. the cm*
of John WanUn. 1 Klllot'* OnbatM. 6a ; Coffln r. Coffin, i Uul B. t, Si, SB.
■ Dann v. An.UrMo. S Whot. K. SOI, S30. 231.
* Dunn r, Andenon, « WhnL R. Wi. !a<^ 231 1 1 K«nl'a Oomm. Lect. 11, p. 90.
* la l»l.
* 8r« • iMtncd wtk)* <m thti tabjtct ia the EaglBh I<w H^juum for Jmlf, lS3t.
p. 1. etc pAriiunanury Dtlatt*, 1831.
(a) In * rsM decuM in yortoiber,
1S73, dm SupitMc Ce«rt «f Illinoii piu-
iiLcd w far tfontempt tlw puhliib«r of a
dalljr pa|iar invbowcolnnuMtikiappMnd
•n utlolo nfccting •nvnl]' apnn tb«
ooort.
{t) Sn ako the KceU cue* o( Ilia v.
BMtMt, 1 Grajr, M9 ; Burnham v. Uor-
Titmj, U Gnr< 324 ; 8t«Uf. UAthnr*,
S7 N. H. 4S0. The oaurla cum4 fauiulr*
(nlo Um jiutic* or pinptwtj' or > Itflik-
UvB pmbhninit tn tlw ntjniUlan of •
wtmbrt for mUoondDct. Blu v. DutlMt,
MfM,
622
coNSTtTirnoN op ms cxited !«taits. [dooe lit.
tnining and puninhing for a contempt of its pririlv^M, tJlc [loiiH<j
RclWI in a judicial ca|iacity.'((i)
§ K50. Th<> Hixth wcticm of tlic lirst article ountatns tui enu-
inorntion of the rii^rhts, privilc^'^, and dinAbililii-d of the mtuu-
hers nf «3ch house in thi'ir porxonnl and iBdividiinl cbaractcre,
a« oontradifltinpiiahcd from the rights, privileges, and diaaliili-
ties of (hu body of which thcv aro mcmWrs. It may here again
be mnarkfd, thut thoso rif^hltt tiiid privileges are in trath the
right* and privik-pwi of thoir c<>n»tilu«ntit, and for tJieir benefit
and security, mthcr than the rights and privilegea of the ntemticr
for his own tK^nerit and s<H'urity.'(4) In* like manner, the diim-
bilitics imposed arc founded upon the same comprehensive policy,
to guard the powers of the representative from abuse, and to bc-
cure a wise, impartial, and uncorrupt administration irf his
dutira.
§ 851. TJic first clause is as follows: "The senators and rop-
resentativea slmU receive a coniponsntion for their «enicea, to Iw
ascertained by lav and paid out of the treasury of the United
Statea They shall, in all cases, except treason, feli>ny. and
breach of the peace, be privileged from arrest during their at-
tendance at the session of their respective houses, and in going
to and returning from the same. And for any speeeb or debata
in either house they shall not Ite questioned in any other placa**
§ 852. In respect to compensation, there is at pfeaent a
marked distinction Iwtween the members of the British Parlia-
ment an{] the members of Oongret^s, the former not lieing at
present entitled to any pay. Formerly, indeed, the members of
the House of Commons were entitled to receive wages from their
constituents ; but the last known case is that of Andrew Mflrrell,
who was a meml>er from Hull, in the first Parliament after the
restoration c^ Charlea the Second. Four shillings sterling a day
u«cd to bo allowed for a knight of the shire, and two shillings a
> In Tatct K I^niiDg, t> Johnt. R. 417, Mr. JiatiM Pblt wU, (lal -tl-o rtght U
pQDtthing for touI(<m|iti by ■uminit7 coDviirtioii i* jahcrrnt In aU mitfUorjiutlc* atul
t«gi(Utii« u«enib1ii% and U cncntial tn ihcir protretioo and «xU(«iic«t It is* Insck
o( the aMnmon kw wloptod and uiKtioncd b^OBr BUU coaititiitioo. T1ie<leHuan
iDTolwd in this powDr i* in 1 )[T>wt mawiira arUtraiy and ondcAnatile : and jri th*
«iperi*nr* of if» luu tlRmon«tniud, th«t it it pnfwtiy cowpatib)* wilii civil llbaiif,
■ad aiuiltur t» thti pumt fiuU of Jiutke."
* Oom. Dig. P^rlUmaU, U. 17.
la) 8m alw Hiu b. BullMt. 3 Qnj, US. <t] Cottn ■. CoCn. I Vhm. 27.
CH. Xfl.]
PRtvrLEOEg OP CONGRESa.
dar for a m^mlicr of a city or boroufrh ; and tJiia rate wa« estab-
lishvd in Uk- rvigii of 1%dwurd llio Tliird. And we arc- told that
two Khillings a day, the ullowflncc to a biirgesK, was so coniiid«rn«
h]v u sum in thesie niM-iont tiinra, that there are many iiiittances
where iHimiitrhs [jctitiom-d to he excused from ar-ndiiig nionibera
to Parliantfiit, re|>rt'8<>iitiiig that thi*/ wire ongagcd in building
hridg'>« or otli<>r )iiiblic works, aiid thi^rffore unabin to bear bo
extraordinary oii exjM'uttn.' It is liolicvod that the practice in
Amiirioa during its colonial state was, if not univeraally, at least
generally, to allow a compensation to be paid to mcmlxra; and
the practice is believed to he aljaolulely universal nnder the State
constitutions. The members are not, however, always paid mit
of the public treasurj-; but the pradics still e\isls, constitution-
ally or hj Dsage, in some of the States to char)^ tJie amount of
the coRipenaation fixed by the legislature upon the constituents,
and levy it-in the State tax. That hnii certainly been the gen-
eral course in the 8tatc of MoHftaclmsctta, and it was probably
adopted from the ancient praclicc in Entiland.
§ 80S, Wliether it is, on tho whole, best to allow to members
of Ic^islatix'e b'Hlics a comfiensation for tlicir 8er\'ices, or whether
their service shuiiM lie considered merely lionorury, is a <piestiun
admitting of much an;umcnt on each side; and it has accord-
ingly foimd strenuous advocates and opixmcnts, not only in
speculation but in practice. It has been alrejidy seen, ihul in
England, none is now allowed or claimed, and there can be little
doubt that publie opinion is alti^ther in favor of their present
course. On the other hand, in America an opposite opinion
prevails among tlioae whose indnence ia most impreasive with
the (woplo on fiui-h subjects. It is not surprising that, under
such ei reumstanccH, there should have boiu a consideniblo diver-
sity of opinion manifested in tho convention itself, Tlie proposi-
tion to allow compensation out of the pu)>lic tr>;si;ury to niembera
of the IluiiHe of Representnlives was originally c»rried by a voto
of eight States against tliree;^ and to the senators by a rolo of
seven Htates against three, one l>eing divided.* At a subMOquent
period, a motion to strike out the payment out of the public
treasury was lost by a vole of four States in the altinnntive and
I 1 Bhck. Comn. 171, *nd Chratiui'* Tiotc, SI ; U, PtTano on t luL S3 ; Cton,
Dig. PttHiimtnl. D. IS.
* JaamUofOMnRtlca, «7, lie,li;. ■ IJ. 119.
624
COKRTITUnOX or THE tINlTBD STATES. [buOK HI.
fire in tlie negative, two being divided ;> and the whole propo-
xitiou ft« to representatives vaa (as amended) lost, by a rote of
0re States for it and fire against it, one being divided.^ And as
I »cuator8, a motion was made that thej should be paid by their
Bpo«tive States, which was lont, five f>tates voting for it and
BIX against it; and then the proposition to pay them out of the
public treasury was lost by a similar vote.* At a BUbaei)Hent
period, a proposition was reported that the compcnsalitm of the
members of both houses should he made by the Stale in which
tliey were chosen,* and ultimately the present plan was agreed to
by a vote of nine States gainst two.* Such a fluctuation of
opinion exhibits in & strong light the cmburrussing considera-
tions which surrounded tlie 8ul>jcet.^
§ 854. The principal reiiHous in favor of a compensatioa maj
be presumed to have been the following. In the first plat^e, the
advantage is secured of commanding the first talents of the n*^
tion in the public councils, by removing n virtuul dtsqualifica-l
tion, that of po%-erty, from that large cUks of men who, though
favored by uature, might not be favored by fortune. It could
hardly he ex[H:cted that such men would make the Dece«sar
sacrifices in order to gratify their ambition for a pnbUo statioa;
and if they did, there was a corresponding danger thut they^
might be conijwllcd by tlieir ucees^ities, or tempted by the!
wants, to yield up their independence, and perhaps their iot
rity, to the allurementa of the corrupt or the opulent.' In the
next place, it would, in a pro)>ortioriato degree, gratify the pop-
ular feeling by enlarging the circle of candidates from which
mL>mbeni might be chosen, and bringing the office within the
reach of persons in the middle ranks of society, although tlioy
might not possess shining talents, — a course best suited to the
funlity found and promulgated in a republic. In tho next
laoe, it would make a seat in the national councils as
tivcy and perhaps more so, than in tliose of liic State, by
su[>erior emolaments of office. And in the last place, it would lie
in conformity to a long and well-settled practice, which embod-
> Jonm. of Cimnntlon, 141. * Id. l(t.
• I<L ISO, 15L • Id.llO.|l(lL
• I.L SSE.
• Sfc VilEt'* Minutn, 4 Rlliol'ii D«h. VS t« M.
■• Sm S ElUot'i DcUtM, S7S, 290 : Yatm'» MUiMm, 4 ElUot'a D(K M to K
CB. zn.]
PUTILBOES OF COTCCRESft.
026
iod public Bentimciit wid had been sanctioned by public ap-
probation.'
§ 855. On the other hand, ii might be, and it wa* probably,
urmH agiaimi it, that the practice o(allowin|i; coin|>cu«ation was
calt'iilati^ to make the office rather more a matter o( burguin and
a[)eculatic>n than uf hi^h jwtitical ambition, it would operate
aa an in<luccm(^nt to vul;^r and gravfilling deniago^ce of little
talent and narrow muana to defeat the claims of higher caiidi*
dates than themaelrea, and, with a riew to the con)]>ensatioa
alone, to enga^ in all snrtx of corrupt intrifniCH to procure their
own election. It would thus detrrade these high trusts from
being deemed the reward of dintingniabed merit, and atrictl;
honorary, to a mere traflic for jwlitifal oflic*. which would first
corrupt tbo pcoplo at the poUa, and then subject (Itcir libortiea
to be bartered by their venal candidate Ilea of talents in this
way would be compvlkvl to di'^radaliuu in order to aeqiiireoflicQ,
or would bo escludi-d by more unworthy or more cuuuing candi-
dates, who would foci that th« laborer was worthy of his hire.
Thcrv in no dnnjnrr that the want o( compentiatiou would dctor
men of suitable tulcuts and virtues, cecu in the humbler walks
of life, from becoming ntembera, since it could scarcely be pre-
sumed that the public gratitude would not, by other means, aid
them in their private businesa, and inereaae their just patronage.
And if, in a few cases, it should be otherwise, it should not be
forgotten that one of the most wbolraomc lessons to be taught in
republics was, tliat men should Uiini suitable economy and pru-
dence in their private affairs, and that profusion and poverty
were, wtib a few splendid excerptions, equally unsafe to be in-
trusted with the public rights and intercuts, since, if they did
not betray, ihey would hardly be presumt^'d willing to protect
them. Tlie practice of England abundantly showed that com-
pensation WHS not necessary to bring into public life tJie l>e«t
talents and virtues of the nation. In looking over her list of
distinguished statesmen, of e<|ual purity and patriotism, it would
be found that eomiwirntivply fi'w had possessed opulenro, and
many had struggled through life with the painful pressure of
narrow rcsotirces, the m an^uttt domi.*
§ 836. It does not become the commentator to say whether
> Sm Raw1« on tbf CMMtluiie*, eh. IS, p. 1T>.
« Ste Ykln'* Hinnti^ I UUm'* D«Ut«. n to OS.
TOt. I. — 40
626
CONSTITUTION OP THE tTNITED STATES. [BOOK HI.
experience lias as jet i;iven more weight to the former tliiui to
the lattvr rcasonii. Certain it io, that the eonx'eiition, in odopt-
int! tbi- rule of iiHow-ing n c(Hnpen8«tioii, bad priiit-ipally in ricw
thc importance uf »eciiriiig the liigbcst dignity and iiif)e|>endtii>ce
in the dischai^ of Icgialntive functions, and the justice as well
a» duty uf a free people posaeasing adequate means to indemnify
tJiosc who were employed in their Hervice againnt all the aacri-
ficcs incident to their station. It has been juatly oba«rred, that
the principle of compenRation to those who render senncca to
the public runs through the whole Constitution.'
§ 857. If it be proper to allow a compensation for services to
the members of Congress, there seems iho utmost propriety in
its lieinfr paid out of the public treasury of the United States.
Tlic labor is for the bcne5t of the nation, and it should pro|icrly
be rcmunerati^d by t3ie nation. Besides, if tbo cumpensatioD
were to be allowed by the States, or by tlie constittieiits of the
mcmbt-rs, if left to their discretion, it mij^ht keep the latter in a
state of ttlavish dependence, and mi|iht introduce great inequali-
ties in the allovranee. And if it were to be ascertained by Onn-
grcsfl and [laid by the constituents, there would always be dangef
that (he rule would be fixed to suit those who were the Icaat en-
lightened and the most parsimonious, rather than Ibooe who
acted ujmn a high sense of the dignity and the duties of the sta-
tion. Fortunately, it is left for the decision of Congress. The
eom]>ensatinn is "to be ascertained by law," and never addresses
itself to the pride, or the parsimony, the local prejudices, or
local habits of any part of the Union. It is fixed with a liberal
view to the national duties, and is paid from the naliomtl purse.
If the com|>en!i3tion had Ixten left to tie fixed by the i^late lecis-
latnre, the general goromnient wonM hare become dc|»endin]t
upon the governments of the States ; and the latter could almost,
at their pleasure, have dissolved it' Serious evils were felt from
tliia source under the confederation, by which each i^tate was to
maintain its own delegates in Congresn;* for it was found that
the States too often were operated ujKyn by local consideratious,
as contradistinguished from general and national interests.*
> IU«k OD lU Ctmiitalkm, di. IS, p. 17S.
■ ArtioUi* rf ConfDcknitMn, ail S.
• 9 ElUot'a Debttet, S7B ; 1 KUiM't DtUxa. 70. H.
CH. xn.]
FMVILEGES OP C0SGRE88.
62T
§ 858. Tlifi only practical qyration which ttvcma to have been
furlJicr open upon this h«ad is, whether th« compi-iuuilian should
have been asccrtnihetl hy the Const ittitiun itsuU, or loft (as it
now is) to be a8Rertain<!<l from time to lime hy Congress.' If
lixcd by the Constitution, it mi^t, from the change of th« value
of money tmd the nini)p» of lite, become too low and utt«rly in-
adequate. Or it might become too high, in con8«<iucncc of seri-
ouK changes in the prosperity of the nation.* It in wiacat,
therefore, to have it left where it is, to be decided by CoiigrcM
from time t4> time, according to their own sense of justice and a
large view of the national rcsoaroea. There ia no danger that it
will over become excessive without exciting general discontent,
and tlien it will noon be changed from the reaction of public
opinion. The danger rather is, that public opinion will become
too Hcnaitive ujion this subject and refuse to allow any addition
to what may bo at the time a very moderate allowance. In the
actual practice of the go^xrnment, this subject has rurely been
stirred without producing riotent excitements at the elections.
This alone is sulTicicnt to establish the safety of the actual exer-
cise of the power by the bodi«.'« with wliich it is lodged, both in
the State and national legislatures. > It is proper, however, to
add that the omission to provide some constitutional mode of flxi
iug the puy uf m<!nib<.T8 of Congress, without leaving the subject
to their discretion, formed in some minda a strong objoction to
the Coiutilution.*
§ S59. I1ic next part of the clause regards tlie privilege of the
mcmlfcrs from arrest, except for criinea, during their attend-
ance at the sessions of Cnngreas, and their going to and nUurning
from them. This privilege is concealed by law to the humblest
suitor and witnesa in a court of justice { and it would be strange
indeed if it were denied to the highest functionaries of the state
in the discharge of tlieir public duties. It belongs to Congresg
in common with all other legislative bodies which exist, or hare
existed in America since its first settlement, under every variety
of govcninient, and it has immemorially constituted a privilege
of both houses of the British ParliamenL* U seems absolutely
• 8m nolA, Pl 001. mpra. ■ » BUiM't DelMtti^ 97B, SSO, Ul, 282.
■ t nUol'* TMmtm. TO, Tl.
• Sm Got. ILuMlol|<h'* I^Ur; S Amw. Xu«. «; TO.
■ 1 lUuk.CDmiii. mi, IU;Coin. Pig. f^rHamtnt, D. 17 ; JeOenoii'i Ituitul, f 9,
PriviUtt; Bmyon n. KtvIjh, Str 0. Bridg. R. SM.
628
cossTmrnoN op the ositbd btates. [book qi.
indi^pensatile for the just exercise o( the legisUtire po«r«r Jo
every nation purporting to pQ«is«&<i a free constitution of govern*
nient, an<I il cannot be fnirrendcred without endangering tha,
public liberties as well as the private independence of the
bors.'(a)
§ 860. This privilejre from &rre«t privileiges them of oc
against all procesa, the disoljc^lienr^ to which is poniiilialile bj^
attachment of the person, tinch &a a gubpeena ad retpoHdrndum,
aut fattifi'-ati'Itim. or a sumranna to aerve on a jurv, and (as
been justly observe*!) with reason, becanae a member has tape*^
nor duties to perform in another place, (h) When a repreftenta-
tivc is witli<ir8wn fn>m his seat by a summons, the people whom)
he represents lose their Toice in debate and Toto as they do io
Ikis voluntary abseooe. When a senator is withdrawn by Bum-
mons, his State low^ half its voice in debate nnd vote, as it does
in his voluntary ubsenco. The enormous disparity of the evil
adoiits of no comparison.* Tliv privilcj^, indeed, is dovmcd not
merely the pHvilcgo of tlie meutlter or his cniuitituonls, but th»j
privilege of the House also. And every man must at his pcTil take
notice who arc the members of the House returned of record.'
§ 861. Ilic privilege of the peers of t4io British Parliament to
1)0 free from arrest in civil casfs is forever sacred and inviuUhle.
For other pur])Oiics (us for common pnKess), it seems that their
privilege did not extend, but from tlio teste of tlie summons to
Parliament, and fur twenty days before and after the seasioD.
Rut that period has now, as to all common process but arreat,
been taken away by statute.* Tlie privilege of the mem)»er« ai
the Houae of Commons from ariTst is for forty days after every ,
pror(^tion, and for fi>rty days iK'fore the nest apjwinted meet*
ing, which in effect ia na long as the Parliament Issta, it aeldoni
being prorogued for more than fourscore days at a time." In
case of a dissolution of Parliament It docs not upp«sur that the
■ I Kilt, ComiD. Lect. U, p. 131 ; VMm o. Mwtiu. 1 D*l>. B, SM ; OoBs i.
Comn, 1 Mob. 11. 1.
■ JttTenoa'i Miniul, | 3. * Id. ) 3.
* Cmn. Olff. earlia-nail. D. IT : 1 BUek. ComH. ISS, IM.
* 1 taK\. Comn. MS ; C«n. Pig. Fariitnfat. U. 17.
(«) Sn alM Ootbtnf, Iaw uid Pnc-
tic« of l>t(i»1kUn AuamblU*. H G48-M7:
Oool'y, CouM. Urn. ISt.
(t> Exemiitian tttm anwt is not *io.
kt*d b; tlu ttrrita st dutiaou er dnL
■tlotii In dvCI <wm. Gratry *. GnMt:
37 Tkm. Mt : Cm* p. KvnhMkv, 15
Hick. fiS7.
CH. JUI.]
PRITILBOES Of CONCKESS.
tS2d
privilep) is confined to onj proclM timo, th« rule being that the
purly is ttntltled U> it (ur tt cunvvnii:ut (imt>, rtJeundo.^
§862. Tho [irivik'gc of niembera uf Pari iunivnt formerly ex-
truded also tu Ihuir aervaut« aad goods, so that thvy could not
be &rr«8UMl. But so far as it went to oUttruvt tbu ordinary
coorsfi of justice in tho British coiirt«, it has since been ns
stniim-d.' In Ihu mi-mbers of Cougr«ws tho pnvili^ in strictly
personal, nud does not cxtvnd to their scrvnntM ur properly. It
is also, in all cases, oonfinod to a reasonable time, rundo, m*>
rondo, tt ad propria rtdeando, instiwd of being limited by n pre*
ciM number of days. It woa probably from a survey of the
abases of privilc^ which for a long time defeated in I^ngland
the purposes of justire, that tlie Constitution has thua marked ita
boundary with a setliiiona caution.*
§ 8^ The efTect of this privilege ift, that the arreat of the
member la unlawful, and a treitpass ah initio, for which he may
maintain an action, or proceed against tho aggresdor by way of
indictment. He may also be dlsebargcd by motion to a court of
jtuticc, or upon a writ of habeas corput;* and tbe arrest may
ulso be punished as a contempt of the House.'
§ 864. In respect to the time of going and Ktuming, the law
is not so strict in point of time As to require the party to sot out
immediately on liis return, but allows him time to settle bis
private ufTairs, and to prepare for his journey. Nur does it nicely
Bcnn his road, nor is his protection forfeited by a Httlo deviation
fmm llint which is must dire«t, fur it is eiippoxed that some
superior convenience ur nuce^ty direeled it.' The privilege from
arrest taVes place by force of Uie election, and before the member
has taken bis seat or is sworn.'
§ 805. The exception to tJie priTilege is, that it ahnll not ex-
tend to "treason, felony, or breach of tlMS peace." These words
are the same as those in which the exception to the privilege of
> Hulldsjr r. Pitt, 9 Sir. R. »Sa i ■. i^. Qu. Ttmf. Rard. 2S i 1 Bhelt. Oooiat. ISS,
Chtwiian'i Note, 21 ; Bamael r. Uurdmuit, ) Krnjron, R. 125.
* Com. Dig. l^irliatMU, L>. 17 i 1 BUok. Comai. M ; JclTtnoa't MkumI, | H
• JtAtMMi lUnwl, I S.
« Jdbncn-i Uiaul, { S ; 1 8tr. 990 ; 3 WiUm'* B. ICl ; Ctaa. Temp. Hani. SS.
• 1 BUck. Omom. 1S4, lU, 166 ; Com. Di]t. Partiamml, D. 17 ; JcAtaen'i Uamui,
IS.
< AAneo'iHamul. |Si 2 Sir. B.MS. »S7.
* JAnwn'* Itanul, (3; bat m* Con. Dig. /kriimutU, li. IT.
630
CONSTITUTION OP THE DNTTED STATES. [BOOK in,
Parliament i« usuall}- exproiwed at the coDimuu law, and were
dotihtlesA borrowed from that sourc<!.' Now, as all crime* are
ofTences aguiost tlie pcticu, tli« pliruso "brca«Ii of tlie peace"
would accm to vxtond tu all iiidicUblc offeDocs, 08 well tbu»e
which are in faot uttviided witli furcc and violence, an thoM'
which arc ool}* oonatructivc breaches of the pence of the govcra
nieiit, iniuiiniich us tliey violate its good order.' And so, in
truth, it wu» decided in Pnrliiuueiit, in the case of a u^itioud
libel published by a member (Mr. Wilkes), against the oi»iuiua
(^ Lord Camden and the other judgett of the court of coounoD
pleas,* and, aa it will probably now be tliought, since the party'
spirit of thoae times han auhHided, with entire good sense andl
in furtherance of public justice.* It would W monstrous that
any nipmbor should protect himself from arrest or punishnient
for a libel, often a crime of the deepest malignity and mischief,
while he would be liable to arreat for the pettiest assault or tfaa
moat insignificant breach of the peace.
§ 866. The next great and vital prixnlege is the freedom of
apet'ch and debate, without which all other privileges would bo
comjHirativcly unimportant or ineffectual' Thia privilege, also,
is derived from tlie practice of the British Parliament, and waa
in full cwrcise in our colonial legislaturea, and now belongs to
the legislature of cvury State in the Union as matter of constitu-
tional right la the British Parliament it is a claim of imme-
morial right, and Is now further fortified by an act of Parliament ;
and it is always particularly demanded of the king in person hy
the speaker of the flou.se of Conmions at the o|)ening of every new
Parliament.* But this privilege is striutly confined to things
done in the course of parliamentary proceedings, and does not
fiover things done beyond the plaoc(<i) and limits of duly.^
Therefore, although a speech delivered iu the Houae of Commons
is privileged, and the nn'mlwr cannot be ipiestinned rea|HH^ting
it elsewhere^ yet, if he publishes his 8|)ewb, and it contains li-
bellous matter, h« is liable to an action and prosecution there-
> i 1n«t SS ; I Blwk. Cemm. 1«9 ; Com. Dig. Pariiamnt, D. 17.
• 1 Blark. Coinni. 164. • Rex v. Wilko. 2 ViUm'% B. ISl.
• Sn 1 Blank. Conm. l««, 187. * Sec 2 Wlboii'i Ltir Ixct. IM.
• I BiMk. Cmnni. IM. I«S. * tttmou'* HuiuU, f 3.
(a) Ttdi inclwdw wmulttB roow ■iwl a. DmiwUj, «Q. B. I>. 90* ; Cftfliii r. Oaf.
M uilkorind {Jkm «f DMeting. QaOn in, I 11m& l, a vsty liupuriaut caM.
cu. HI.]
PRlrlLBOBS OF CONGBSSB.
681
for, OH in common cant-M of libel.' (d) And Uio sainc principles
Bccu applicable to the privilege of debate und spuoch in CungreKS.
> TIm Kiiigr. CntTf, I llawb awl 8tlw. STS-
■prahi — sBiiiniug that it contuniorU
■conniMUiitJ with * bur njioit of th* pro-
taaiingt, — buyond bit cuiittiliiwiejr I
Ohm niorti > nienitwr'a cuiittitiwucy b
ntigntoiy put or lliv yax, ts (ram Jona
till October; miut the incDibcr vitUiDlil
hia ■pcediM during tint litnr for frar thut
if h« MiiiL* Ihcm fu( diatnbullunL, ad-
dnBed ^ncnJly to tlir ]i<i>itniu(«r of ft
tamincr fooct of lii> comlitudntK. copiM
nuy be delivered to pcnoni not «if hi*
(littiict ot SlaU t
It U pUlii, ilim, tb>t tmv {oiwtMloB
tliat a uicmbri of the irgitlilim uutf
acnd hia apKchca to hji conntitimts ii •
ylRldlnR, in lliit countiT, of the ■bola
ftr(i:uiu«iit «|(alutt pri<rilpgi> i» aiicli tsaia.
Add, funlier, the existence of a privilegs
Itatlf r<>c the ciiTJilalmii of a apeeeh hf
■he pmKoi wlio ni(d« it. ia in uidinarj
cws wamintcd and tDquired bir th< pa*
tnl nil* sitnwif nf«iT<Ml to, liy whteh
fair Rpofta of tbe prDCHdiUga naj b»
prinlrged. " In ordinBt7 c**h,~ we wf,
(ur pnccsUj tbe jirinlnl tpMck toattiin
a tiiAvtuDt m|>tirt of tbt otcaaian. Tha
Nal dilKuulljr, to far ai there >■ au; diS-
eulijr, i* vitb Uw tircnbtioD nt apntlMa
whj^h would no4 bo (irtTileged on tbe
footlBi! of a jioUii-atlon, «. j[.. In the n«iw»>
pa|i«n, of ■ Iiir rvjiort of lli* procaadlagl.
And in ngaid to that caio, it la hatd to
•M aaj TCaaon which can jtuttfjr dimib*
tioB among a luenibrr'* <«niiitaf«cT idlh-
oiil JaMlfyinK dfculatlon Rvncnllj. It It
bani to l*tUty nlUirr. The trof rale, it ia
a|>|>reliBod«d, ahoulil be to jiut tbe cirenla-
tiion of ipeecliN thoptber n|ion tbe lao4-
(ng of Ur NfMtt^ JMtlfytnit tb« apaalor
only w h« wottld bt JuaUfeed ai tbt yiA-
liaher of ■ Bnn|K|itr npoHing to Iho
world tbe proroedingi of tbe legiiUtiuc.
It ii BOW loo Utr, bowcm il majr Iibtb
b«M sixty jmui a^ to quMllua a [iritl-
Ugt of "Uir rvporta;" and as for Uw
dottnue of [ffinli^ itatlf, tbat b fiudft*
(ai Thii would now be too brvod a
atBlenisnt. A nmnbar of hiliainoiil may
ronaiuly <imilato Mnong hi* amtftfmiiXi
• aifeacli made bjr kim in Puliamont.
Waaou r. Waller, L. IL I Q. R 73, Kt ;
DaTison v. Duncan, 7 El. A B. US. 339.
(For Uie Uw of England before Itgiilscion
■ae Stockdale •. Itannrd. B Ad. i E. 1 ;
Wa«ou c Waller, aujKno.) Ami It may
b* doubted whether any luch qualilica-
lion «f lh« privilege m that tuggeeted
can be worked in thia coaairy. Prac-
tical])', tile qiioliJiamon ia crerywbtre
Ignoied, if it axiata. Mcoiben «f Coo-
grce^ If not of lh« Stale IrgttUlarea, act
upon the miiiiNiiiliiui tbat the cIrcuUlion,
by iheniwlvm, of their apnchea is |;inaiut
^h} privileged, and thai the privilege ia
not limited in terrilory. And If luch clr.
eulalion !• privlte|[nl, !l cannot b* limitwl
111 that way without abaunl coustNiui'iicra.
A nwinber of the llouw of Rcineifntitiivea
dclivcn a eprerh there coiilaiulug de-
famatory rrniviioua u)>iiii Mtne one ; on
llie Drxl day he it Innnferred to the Sen-
ate, and tlM winiie iponh Cilh the laino
nflectiona, i* dcliveted Ibara. MuM tlie
apeak** be riiniinad to lk« puticular dU-
trlcl wbiuli be repvaentpd In the bonai,
in circnloling tlie ftnt epeach, while be
ha* Uu whob Ktaio foi the aeeondt
Ajpin. lb* luhjKi (d the nllrotiana than-
mIvcb May conotra the wbola tomitr;, aa
in tha caie of en imtvaclinunt ; In anch
a eaaa ahalt one whv repraaesla a Tery
poor and degenentc ceadituranr. e. g.>
the knirr fmit of New Y«9% city, have
the right to Mrevhte Us qitecb there,
when it will probably hare no rflacl fur
any puipme, and be eut ulT fram ditulal.
Ing It amo*^ inoni <Blighl*ned pcojile T
Again, if a " fair lefntt*" of the proceed-
ingl ot the body may hr pnUUbnl (with-
out malinl by nempipers drctilalliig
f^nctBlty, how ran it be that a meinlor of
that body tiinat uol einulale hi) own
633
CONSTiTCnOM OP THR ITNITKD aTAnM. [BOOK III.
No nuu) ought to have a right to defame others uoder color uf •
lierformance of the duties of bin office. And if be docs bo in the
ocluul dinchargie of h'm duties in Congress, that furnishes no r^a-
son wh)' lie should be enabled, through the medium of the press,
to destroy the reputatian and invade the repaee of other uilixcns.
It ibi ncithor within the acope of bis duty nor in furtherance of
public rights nr jmhlic policy. Every citizen has as good a right
to he protected by the lanii from malignant scandal und false
chargea and defamatory imputations, as • mt-mbt-r of Coogreas
has to utter them in his sout If it were o<bL-ru-i»e, a ouio's
character might bo taken away without th« puHsibilily of rwlreas^
either by the muliue, or indiscri-tion, cw ovorweeuing selfn^uiDi-it
of a member of Cun^reDs. ' It is proper, however, to apprise ibe
learued rvadur that it bus been receatly insisted in CungiVM by
rery distinguiidiod lawyers, that the privilege of speecb and de*
bote in Conjt'i-i'As duvn oxlciid to piihlicatioo of the sfn^eoh of the
member. A.iid tliey ground ihcinselves upon an imjiortant di»-
fcinction arising from Ibo actual differences between English and
Ameri<:an legiKlation. In the former the publication of the de*
bates is not strictly lawful, except by license of the House. In
the latter it is a common ri^it, exercised and supixtrtod by the
direct eneouragenieiit of the body. This reasoning deserves •
rery attentive exaininntion.*
$ 867. The next clause regards the disqunlifi cations of mem-
bers of Congn-as, and is as follows; " No senator or niprttaenta-
tive shall, during the time for which be was ele<^tod, be appointed
to any civil oDice under the authority of the United Statvs, which
I 8m th» TtMons in CoOSii r. Coffin, I Man. R. 1.
■ Mr. Dod<tridgc'B SiHMob in the one of lloniton, Ik May, 183t; Mr. Bni^i
SpKli, Ibid.
■nentkl. Socloty could not long exiM if
tado lutrm, vlirtbtt in wif-pretenMn oi
tn Um di»i.'h«i^ of Jaljr, wtM MM ftf
nlttoil. It if only ucctmmty thut iha
joitUmtian tbcntld b« brailnl to th* rn-
UmUc (nguitveuenU at the jMiiicuUr
cu> i I my do harm to my nnghbor only
in M r*r u nay nammilily appear to b«
n(ww»wry in Xht iimhMtgt •! itniy «r in
pnitwllng nywlf, toy faajly, or ny
prop'4iy.
Tha privilagt la iinintioa it «f r^ane at
&t kind ttiUA prima filths Itiat K )l
nbaa on th» fooOnit ihal lb* sot af i
Mn<Wr *M not mlkiotu, — not ikan «. (.J
witb RD indirect Botire «t vnintt f An i
nalioF in thu wnia wa SteniH a. MM' '
laad Ry. 0»^ 10 Kx. 3G0 ; .Vlmth v.
NoHlxaMara Ry. Co., II Q. a D. tlO
450, Itowtn, L. J. ; h. c. II App. C*a.
ftt7.) Bat tba nera MniBoui ' t^m^li ha-
yand om'a «onalitiHnf)r. br frout ■•ta^
Ikhlnit MoU not vren, la itaaon. bv a*i.
danea oT MJba,
CH. XII.]
rBtVtUKGKS OP
•liall have benn crenf«d, or the enioluinont« whoreof shutl bave
been incroased, during such time. And no pcmun, huldinjc; any
(dHce under the United States, shall be a member of vithor bousQ
of Congrcna during his continoanoe in olTicft." This claiwc dues
not apjtcar to hav« m<!t with any opposition in the convention,
I to the prt^riety of some promion on the subject, tlie priocU
it qfueation beiu^ as to the best mode of expivtininf; tho disqiiali-
(icalionji.' It has tx'en doi>nu!d by one coimnviitator an Admirable
proriaion against venality, though not, perhaps, sufficiently
guarded to prevent evasion.' And it has been elaborately vindi*
cated by another with uncommon eami>stne«s.* The reasons for
excludioK j^n'sonB from officea who have been concerned in creat-
ing ttivm, or increasing tbeir emolnmcnta, are to take away, as
far as possible, uny iuipruper bias in the vote of the repreventa-
tive, and to secure to tliu constituents some aoleron pledge of bia
disinterestedness. The- actual itrovision, howcvor, docs not go
to tlic extent of the principle, for his appointment is reatricted
only "during the time for which he waseleetiid," thiu leaving in
full for«e crcry influence upon his mind, if the ]ieriod of bis
election is short or the duration of it is approaching its natural
termination. It bag somotimi<s liccn matter of regret that the
disqual i Ileal ion bad not been made eoextensire with the supposed
mischief, and thus have forever excluded meml>er8 from the |>ob-
eeasiun of ofTioes cre-ated, or rendered more lucrative, by them*
selves.* I'erhaps there is quite as much wisdom in leaving the
proviaiou where it now is.
§ 868. It is not easy, by any oonstituf iona) or legislative en<
aclmenta, to shut out all or even many of the avenues of undito
or corrupt iiifhMViice upon the human mind. The great aocuritJefl
for society — tlioae on which it must forever rent in a freo govern*
ment — are rpsjKiiMibility to the people through elections, and
personal character and purity of principle. Where lh*>*e are
wantJng there never can be any solid conRdenee or any deep
scnM of duty. Where these exist they become a aufiicient gnar'
anty against all sinister intltiences, as well as all gmsa ofTenoea.
It has been remarked with equal profoandness and sagacity, that,
> J«m.rfConnKti(in.ll4.31». SIS. SS3, 123.
* t Tack. Bliuk. I^nntm. App. 10)1, 214, SIS, ZJi.
' RawU w tha CuMt. eh. 19. f. 181, Ac. ; 1 Wilacm'* Uw LkL U9 to (IV.
* Bft>b on tke Onnirt. di. IS. See 1 Tnek. Blult. CiiiBiii. App. S7y
6S4
CONSTITUTION OF THB DKUEO STATIS. [BOOK HL
OS thoro is a degree of deprarity in mankind which requires a
certain degree of circumspection and (listrust, ko there are other
qualitiet* in human nature which justify a certaiu portion of
teem and cnnlidence. Republican goternment presupposes tbe^
Oxistenr« of thefl6 qualities in a higher form than any other.'
It might wetl he deemed harsh to disijualify an individual from
any odice, clearly required by the exigencies of the Cioanlr>',
simply becauHe he had done his duty.^ And, on the other hand,
the disqualification might uperate upon many persons who might
find their n-ay into the naliuna) councils, as a strung inducement
to postpone the creation of necessary olliccs, liwt they sliuuld
become riclims of tlieir high dischurgo of duty. The cbauovs of
receiving an uppuintinent to a new office are not so many or so
enticing as to bewilder many minds; and if tliey are, the aberra-
tions from duty arc so easily traced that they rarely or oevvr ea*
cajie the public reproaches. And if influence is to bo excrt«4,
by the executive for improper porposes, it will be quite as eaay^
and in its operation loss seen and less suspected, to give the stip-
ulated patronnge in another form, either of office or of proiitablaj
employment, already existing. And even a general diaqiialifi-
cation might be evaded by sutTvring the like patronage silently to
fall into the hiuids of a confidential friend, or a favorite child or ■
relative. A dishuaorable trathc in votes, if it should ever beconio
the engine of party or of power in our country, would never be
rcatraincd by the slight network of any constitutional pruviiiions
of this sort; It would seek and it would find its due rewards in
the general patronage of the government, or in the giossessiun uf
the offices conferred by the people, wliich would bring emolu-
ment fls well as influence, and secure |»ower by gratifying favor-
itea. 'Ilie history of our State govemnients (to go no further)
will scarcely be thought by any ingenuous mind to afford any
proofs that the absence of such a distjualilication has rendered
State legislation less pure or loss intelligent, or that the cxistr-
esce of such a disqualification would hare retarded one
measure, or introduced one salutary scruple into the dements of'
popular or |>arly strife. History, which tt^uehea us by eKamplcv,
establishea the truth l>eyond all reasonable question, that genuine
patriotism is too lofty in its honor, and too enlightened in its
t Thx F«>dmli«t. Ve. SS.
' S Elliot-* tithUM. sn.
ca. XII.]
PEtlTlLEGES OP C0NGBES8.
686
object, to need Buch checks; and thut vrvaknetM and vice, the
turbulence of faction and the nte-annvstt of uvarice, are easily
bought, ootwithBtanding all the efforts to fetter or ensnare
them.
§ 869. The other imrt of the clauae, which disqualifies peniona
holding any ofliec under thv United Statea from bein^ roomliers
of uilhcr hotwu during Uic conliiiuuncc in oflicv, has l>Gen still
inure uuivcnuillj' upphiuded, and liivi boon vindicated upon the
highest gnmuds of public policy. It is doubtless founded in a
deference to State jcaloiuty, and a sinwrc desire to obviatv tbo
fean, real or Jmuginury, thai the general guvemuient vould ol^•
tain au undue prefercnee over the State gorenuncnts.' It has
also the strung recommendation that it prevents any undue influ-
ence from oflice, either upon the |Nirty hinwclf or (hose with
whom he is associated in legislatira deliberations, llie uni-
versal exclusion of all jtorsoiis holding ullioe is, it must be ad-
mitted, attended with some inconveniences. The heads of the
departments arc, in fact, thus precluded from proposing or vin-
dicating tlieir own measures in the face of the nation in (he
course of debate, and are con)|)elIed to submit them to other men,
who arc either imperfectly ncqiuiintcd with the measures, or are
indifferent to their succcsa or failure. Tlnis, that open and pub-
lic reaponaibility fur measures which properly belongs to t3ie
executive in all guvemments, and especially in a republican
government, as its greatest security and strength, is completely
done away. The pxeeuti\-e is compelled to resort to secret and
unHeeii influence, to private interviews and pri^'atearrangemenla,
to accomplish its own appropriate purposes, instead of proponing
and sustaining its own duties and mrasurr8 by a bold and munly
appeal tu Ihc nation in the face of its representatives. One cun-
scquooce of this stale of things is, that there never can bo traced
home to the executive any responsibility for the mea»iirL-s which
are planned and carried at its su^^tion. Another cunitequcnco
will l>c (if it has not yet been), that measures will be adopted
or defeated by private intrigtie<i, political combinations, irre-
sponsible recommendations, and nil the blandishments of oSioe
and all the deadening weight of silent patronage. The executive
will never be compelled to avow or to support any opinions. Its
1 8m Rnl* M IIm OMHtllntlon, ch. ]» ; TU FtdMllK, Ke. Sfl.
6Sd
CO.VSTIIUTION OP IHB DSITBD tTATES. [BOOK UI,
Dunistara may ctmc^al or evade any exprcasion of Ibeir opiniona.
It wilt seem to follow, wltcu in fact it dire«tB, the otimioDs of
Con^reeit. It will asAiuiic tlie air of a dopendcitt inxtruim-nt,
ruady to adopt tlic acta of ihe legialature, when in fa^t il« apirit
and ita wiabea pervade the whole ayatein of kgislatann. If cor-
niptioit e\'cr eala its way silently into the Tilala of tlii* repulilir,
it will be becatiae the people are unatile to bring res|)on«ibililr
home to the executive through hta ehoaen inini8t^.r£i. They will
be betrayed, when their auaptcioua aru inost lulled by the execu-
tive, nnder the disfniisc' of an obodicDL-e to the vill of CtHigreaa,^
If it would not hafe been aafe to trust the bcada of departmento,
representatives, to the choice of the people, as tbvir constituents,
it would have been at least some gain to have allowed Ihem a
wat, like territorial di-legateti, in the IIoiimi of HcprL^Mintatives,
whore they might froely debate without a title to vote. In such
an event their iulluenee, whateror it wuiiM be, would bo aeeji
and fvit aiid underslwnl, and on that account would have involvi
little danger and more acarcliing jealousy and opposition, wh«rca*|
it ia now secret and silent, and from that very cause amy
overwhelming.
§ 870. One other reason in favor of such & right is, that it
would compel the executive to make appointmenta for the high
departments of government, not from pentonat or party favorites,
bat from statesmen of high public character, talents, experience,
and elevated services; from statesmen who had mmed public
favor ant) could command public confidenoe. At present, gross _
incapacity may be eoncculvd under official forms, and ignoraaca
silently eai.'npe by shifting the labors upon more intelligent sub-
ordinates in uffiee. The nation would )>e, on Ihe otlier plan,
better served; and the executive sustitinod by uiore mascultne
eloquence, aa well »a more liberal learning.
§ 871. In the British Parliament no restrictitHis of the former
sort exist, and few trf the latter, except such as have been created
by statute.' It is true, that an acceptance of any office under
the crown is a vacation of a se^tt in Parliament. Tliis is wine,
and secures the people from being betrayed by those who hold
office and whom they do not dioose to trust. But generally tbey
ue re-eligible, and are entitled if the perjpte so choose, again Ut
t SmI Black. Ccna. 105, no.
rKiviL>r.RS OP
987
hold a %cai in the IIou»e of Conunons, ncrtwilhxtaiKling Uieir offi-
cial character.' The consequence ia, that th« ministers of the
orown HDftume an Ofwn (Mildit- rcafmnsibility; anJ if (he rppppscn-
tati'm of the peuplu in the llouw.- of Cummons wore, as it ia under
the national go^Trnmont, fuiindLvl upon a uniform rule hy which
the jK-tijiki might ubtuiii thvSr full Hhnreof the government, it
would be iiupoiutiblc for the niiniittr}' tu exercise a controlling
influence, or cticapc (as iu Auierivn they mu}-) a direct palpable
n'spunMibility. There can be no danj^r that a free people will
not be suflieiently watchful over their rulcnt, and their uctn, and
opiniuns, when Ihey are known and avowed; or that they will nut
find re[>i-eKentative«i in Congreaa ready t« oppose iini>ro)>or mcoA-
uros or sound the alarm upon arbitrary encroachments. The real
danger is when the intiuence of the rulers is at work In secret,
and assumes no delinite shape; when it guides with a silent and
irresistible sway, and yet covers itself under the fonns of popu-
lar opinion nr independent legislation; when it does nothing,
and yet aceoniplishes everything.
g 872. Such is the reasoning by which many enlightened
statesmen have not only been led to doubt, but even to deny the
value of this constitutional disqualifieation. And even tlie most
strenuous iidvooalcs of it are com|>ellcd so far to admit it«i forc«
as to concfdu that the measures of the executive guvcniment, so
far as tliey full within the immediate dejiartment of a particular
officer, mi^ht be more directly and fully cxjilained on the fliwr
of the house,' Stili, however, tlie rpasoning from the Briliidi
practice has not been deemed satisfactory by the public; and
the guard intiTjKwi^ by the Constitution has been received with
gonomi approlwition, and has been thought to have worked well
during our experience under the national government.* Indeed,
the strongly marked parties in the British Parliament, and their
consequent disHensiona, have been ascribed to the non-existence
(d any such restraints; and the progress of the influence of the
crown, and the suppused corruptions of legislation, have been by
■ I RUeb. Coiam. 17G, I7S. Chtbllu'* Xot*, Sft.
■ Rawle om t]|« CWit ciu IP, p. 187.
■ Mr. lU*b*a renurfc* in bis trr«tu« om CnulilntMiiial I«w (ebi. 19) m ■* lull on
thii polot u no pralitbly In tannd. Sn atto The f nlnalUt. Nth M ; I Tuekn-'*
Blnck.Camin.Apt>. 1U,214. ai»: 2 ElUot'>I)tb«tM.27e.sr«, 190. ISl.tn ; IWU-
•m'l 1«w Ltd. IM lo U9.
688 CONSTITDTION OF THE DMIT&D STATES. [BOOK ni.
Bome writers traced back to tlie same original blemish.^ Wbetber
these inferences are bome out b; historical facts is a matter upon
which different judgments may arrive at different conclusions;
' and a work like the present is not the proper place to discuss
them.
^ 1 Wibou-a Uv LmL M to U9.
CU. X][l.]
HODB OP PlBaiNQ LAWS.
«89
CHAPTKR XIII.
HODB or PlSBlNa LIWS. PR3SII1I3<t'S NEXIATITE:
§ 878. Thb seventh section of tbe firnt article treats of two
imiMirtaiit subjccta, Hit- ri^lit of orij^iiaHiig revenue billa, and the
nature and extent uf the President's negative upon the paesing of
lavs.
§ 874, The first claiuc deolarca, "All bills for raising revenue
Hhall originate in the Uuuso of Representatives, but the Senate may
pro|MMC or concur with amendments as on other bills." This pro-
vision, so far as it regards the right to originate uliat are techni-
cally called " money hills," is, beyond all quration, burrowed from
the Brittsli Ilouse of Commons, of which it is the ancient and indis-
putable privilege and right that all grants of subsidies and parlia-
mentary aids shall Ix-gin in their house, and are first iMwtowcd by
them, although their grants are not efTecluat to alt intents and
purposes until they have tile assent of the other two branches of
the Icffislature.l TllC general reason given for this privilege of
the Uouse of Commons is, that the supplies are raised u[«n the
body of tJie people, and therefore it is pro)K.-r that they alone should
have the right of taxing themselves. And Mr. Justice Blaekstono
has very correctly remarked, that this reason would be unututwer-
able if the Commons ta.\ed none but themselves. But it is noto-
rious that a very large share of property is in possession of the
Lords; that this proj^erty is equally taxed, us the property of the
Commons; and therefore the Commons not being the sole ]>er«on8
taxed, this cannot be (he reason of tlieir having the sole right of
raisiug and modelling the supply. Tl>o true reason seems to be
thil. The Lords, being a permanent hereditary body, created at
pleasure by the king, arc supposed more liable to be influenced by
the crown, and when once influenced, moi-e likely to continue so
than the Commons, who arc a temporary elective body, freely
nominated by the people. It would, therefore, ho extremely
dangerous to give the Lords any power of framing new taxes
for tile subject. It is suQicicnt that they have a power of re}c«t-
> 1 Bluk. C«nia. IN.
640
COKSmimON op the tlKlTED STATES. [BOOK III.
iDg, if tbcy think tbe Commons too la%-iBh or improridcnt in their ,
grants '(a),
§ 875. This soems a very just account of (he matter with r^'
furencc to the spirit of the Britiah constitution, thou;{b a liUIcrent
explanation hiui been deduced from a historical reviev of tbe power.
It ban been asserted to have arisen from tbe inetmctiuns fmc
time to time given by tbf constituents of tht- Commons (wbcther^
county, city, or borough) lut to the rutui and asflesamenta vhieh
tbey were respectively willing to bear nn<l assent to, and from the
•ggruiiate tt was cosy for tlic Corammis to iisevrtuin'tbu whole
amount which the commonalty of the whole kingdom were willing
to grant to the king.' lie this as it may, so jealous are the Com>J
nous of lhi8 valuable privilege, that herein they will not suffer'
the otlier house to exert any power but that of rejecting. Tbey
will not permit the least alteration or amendment to be made by
the liordn to the mode of taxing the people by a money bill; and
under this appellation are included all bills by which money \a
directed to be raiacd u])on the subject for any purpose, or in any
shape whataoever, either for the exigencies of tlie government, aud
collected from the kingdom in general, as the land tax, or for
private benefit., and collected in any particular district, as turn-
pikes, (>arish ratett, and the like.' It is obvious that this powct,
might be espalile of great abuse, if other bills were tacked to such'
money bills ; and accordingly it was found that money bills were
sometimes taeki^ to favorite measures of the Commons, with t
view to insure tbeir paasuge by the Lords. This extraordinary use,
or rather per^'creion of the power would, if suffered to grow into
a common practiee, have completely destroyed the c«|Uilibrinm of
the British constitution, and subjected both (be Lords aud tlie king
to the power of the Oommous. Rcustanoo was made from time
to time to this unconstitutional encroachment ; and at length the
Lords, with a view to give [lerinanent effect to their own rights,
have made it a standing order to reject upon sight all bills that
■ I BUek. Comm. IM: Da Lolmr on Osutitatioii, cb. 4, S, n>- *^ S4, SS, uj
natft
■ I Wnaoa'* U« I.ML 1«1, 1S3, 183, cUtng Ufllar on OMMlllatko, SM. Bttt i
t WilMM** Uw Irfcl. 114, 145.
• ) Bbtk. (>«». 170, wd CbitHtu't N«U (SSf.
(a) At tb* piTMnt tlOM It It no4 eon- r^set ■ msoejr bOL 8m Hay, '
cadjed tlut Um Hobw of LMih wtj vvca tioMl Ubtorj', tk. J.
en. xm.]
HODS OF PABSING LAWS.
641
arc tAck«d to raoaay bills.' Tbiw, the privilege is mainUined on
one Hide and guarded against undue abuse on the other.
§ 87fi. It will be nt once perceived that tJie same reason* do not
exiflt in the same extent for the same excliuive right in our House
of Representatives in regard to money bills, as exist for such
right in the British Unuse of Commons. It may be fit that it
shotild poHsesH the exclusive right to originate money bills, since
it may be presumed to possess more ample means of local infor-
mation, and it more directly represents the opininns, feelings, and
wiflhcfl of the peaple; and, being directly dependent upon them
for flnp[K>rt, it will be more watchful and cautions in tlio imposi-
tion of taxes thnn a body vhieh emanates exclusively from the
States in their sovereign political capacity.' Bat, as the scnalom
are in a just scnso equally rciircacntativca of the people, and do
not hold their offices by a permanent or hereditary title, but peri-
odically return to the common mass of eilijccus;' and above ull|
as direct taxes are and must be apportioned among the Htates
according to their federal population, and as all tlic States have a
distinct local interest, both as to the amount and nature of all
taxes of ever}' sort which tiro to be levied, there seems n peculiar
titness in giving to the Senate a power to alter and amend, aa well
as to concur with or reject all money bills. The due influence of
all the States is thus preserved, for otherwise it might happen,
from the overwhelming representation of some of the largo States,
tbut taxes might be levied which would bear with peculiar severity
upon the interccts, either agricultural, commercial, or manufactur-
ing, of others, being the minor States, and thug the ciuilibrium
Intended by the Constit^ition, as well of power as of interest and
Influence, migiit bo practically subverted.
§ 877. There wonld also be no small JnconTOnienoc in exclud-
ing the Senate from the exercise of this power of amendment and
alternlion, since if any the slightest modification were required in
such n bill to make it either palatable or just, the Si>nat« would bo
compelled to reject it, althongh %a amendment of a single line
might make it entirely acceptable to both houses.* Such a prac-
1 D( Lolme on Uia OoMtitvtba, nli. 17, pp. »1, Ui.
* S WilMia'* U> Lnc 191, 1S4 ; IU>W aa CanitiNUka, ekfl ; 4 BlUofa DthatM,
HI.
■ I Tatfctc'B Blkck. OMnm. App. SU i 3 WilMn't Uw Lact. ISS, l«l ; RawU m
CondtnliMi, th. <: I EUiM'i IMata*. 111.
* % UliM-i Dabst**, SSa, SSL
VOIL. ■.—41
642
COKSTITCnOS OP THE CKtTEO SIATK8, [ROQK III.
tical obstruction to the IcfrtsliLtion of a free goTomment would far
outwei^ uny Buppoe«d t1icor«tica] ndrttutogcs from th« posseiMion
or exercise of un exclusive power by the Hotisc of Re|)re»«iitatiw«.
InJioite perplexities and misuiulcrstancliiigs aod delays would dog
the mo«t wholesome legislation. Even the aonuol appropriation
bills might be in danger of n miscan-iage on these accouuta, and
the most painful dissensions might bo introduced.
§ 878. Indeed, of so little im|>ort.-moe has the exclusive pne-
session of such a power been thought in the State govemmenta,
Uiat Homp of the State constitutions make no difference as to the
power of each brancli of the legislature to originate money bills.
Most of them contain a proviaion similar to that in the Conslitn-
tion of the United States ; and in those States where the exclo-
»iw power formerly existed, as, for instance, in Virginia and
South Carolina, it was a constant source of difficulties and con-
tcntionM.' In the revised constitution of South Carolina (in
1790), the provision was altered bo as to conform to the clause
in the Constitution of the United States.
§ 879. Tlie clause seems to have met with no serious opposU
tion in any of the State conventions, iiud indiM^l eould scarcely
be ex])ected to meet with any opposition except in Virginia, since
the other States were well satisfied with Ihe principle adopted il
their own State constitutions, and in Virginia the clause create
but little debate.'
§ 880. What bills are properly "bills for raising rewnuc,'' in
the sense of the Constitution, has been matter of some discus-
sion. A learned commentator sn[q>oee8 that every bill which i»'
directly or consequentially may raise revcnui' is, within thi' seni<e
of the Constitution, a revenue bill. He therefore thinks that tha^
bills for establishing the poat-oflice and the mint, and regulatiuj
the value of foreign coin, bnlong to thia class, and ought not to
have originated (as in fact they did) in the Senate.^ But Ihe
[Haetical construction of the Constitution has been acain.4t his
opinion. And, indeed, the history of the origin of tlie power
already suggested abundantly proves that it has bwm confinr-d to
bills to levy taxes in the strict sense of the words, and has not
been understood to extend to bills for other purpoees, which laay
I a Eltiot'i IMata^ 3SS, 184.
■ 1 Tucker'* BImL Ooiun. App. ttl, anil mtc
* Ibid.
PRBSIDENI'S NBGATITB.
643
^
^
^
^
^
incidentally create rcvcnuc.*{ii) No one supposea tliat « bill to
8cU any of tlie public luids, or to mil public stock, is a bill to
raise tvrenuc, in tliv sciiae of tlie Const i tut ioo. Much leut n-ould
a bill bo no docini^d wbicli merely regulated the value of foreign
or doiuLMilic coins, or niithorixed a discbai^ of insolvent debtors
upon ossigtunents of their estates to the Uuited States, giving a
priority of payment to the United i^tatt-s in cases of insolvency,
althongh all of them might incidentally bring revenue into tiie
treasury.
§ 881. The next elaiisft rwippotfl the power of the President to
a[q>rovc and negative Inwa. In tho convention tltero does not
seem fc> have been much di^'ersity of opinion on the subject of the
pmpricty of giving to the President a negative on the laws. The
principal points of discussion seem to hare been, whether the neg>
atire should be absolute or qoaliGcd; and if the latter, by what
number of cacti bouse the bill aboTild sulmiMiitenlly \)v ]iassed, in
order to become u law; and whether the uegalive should in either
case be exclusively rested in the President alone, or in him
jointly vitli some other department of the government llic
proposition of a qiialiried negative seems to have ol)tained gen*
eral, but not universal support, having been carried by tho vote
) 8« BUM'S D«l»l««, SS3, SS4.
I
(a) Dm* nptalisg duties it lua btcn
cbinMd bjr tb* CaMmora In P>rtiun«n^
an BMUey bUU vbiuh tb* Uaatt of Lonli
niMt nM Ol-lgilinu^ tmuii, m njecl. Sm
Hajr, CbnaUtulioiMl HittOTT, cb. 7. Thit
gmcnl Ht^tct WB Mnwwbat dijcimcd in
Ctaignm \% Ui* jMr 1873.
Tb> 49d CoDgno How |WMd • ttil
"to i«p«*l aiirtfag datiM on tM ind
Mifcft" Tba Scott* aihilitiiled In It ■
Ull oantklnlng • g«n«nl rtMih^ ndiM-
Iton, tad nfMtl <4 Itwi fMpoting im-
|Htt dMJM hhI iat«nwl taxt^ tnd teat
tlw tabtttutcd tail to tht Hoott fix ow-
tmttuea. Tba Hon** ntolvid thU tbit
Mhttiluttoa irat " (n conlKd vilb tbe
tmt 'meal tiuj porptMo <i tlktt cImb of
tbr CouMitiitian wbjch rH|DinM tbal ttl
Ulli ttm taialogi renniiB tbtll originat* is
Ik* HuoM of R«fn«nt«tlm," tnd tlinv-
fai* oldvrad it to lie «a tba tabb^ Tbn
Scaato thtwupaai n/arcd tba tat|jf«t 1»
itt CunmittM on rri*i]s(M Mid FieclJoiu,
who RTNrtad thM Ih* Kout* bill "wa
not t bill for raising nranar witbia tb*
DManisg of UiB CMiititaEion, uid tlior*,
Ultr, >biln tlie SoDate migbt have anxodnl
it M u lo abolUi dutit* iJliificihpr uina
iMft trUc)**. th* Sratt* b»j do ri|[ht to
ingraft u|i0n it, •■ it dM is wMaan, aa
f iwilft pnTiding Dwt Pmana ibaald
be ooUrctnl upon olbor artida, tbon^ at
a Im nit ihaii pravlaiulr fli*d by law.
Tbat taMttdmui tratild htva bemac a
proviMon ID 111* A«t fci laiiuig nftnaa^
lw«aiUN lannat at a errtrdn rata woald
liav* b*Mt Mlbrtai) t^ lb* «p«nliMi of
III* Act." Ilia n^rt wn ailoiilnl tra
the Smal^ bni tli* nutgoct did not ^jaia
go htlalc tb* HouM m ai to aSord Ofipor-
tunity for aanrlalning nhatbfr it« vlava
aad tboM of tha S«Mta were or von art
in all partknlan «atlnly In acvcnd. C.
644
cossTiTTrnoN or the cmted states. [book m.
of cigbt States against two.* lliis bein^ nettled, the qnesUoo u
to tlie number wa« at first unanimoosli- carried in the affirmative
in favor of two-thirds of each house; at a Bubsequent period it
was altered to three-fourtha by a vote of aix States against four,
one being divided; and it was ultimately restored to the two-
thirds, without any apparent struggle.* An effort was also
made to unite the supreme national judiciary with the execatdrc
in revising the laws and exercisini; the negative. But it wa«
constHUtly resisted, being at first overruled by a vote of four
Slutcs against thrtx, two bcio^ divided, and finally rejected by
tliu vote of eigtit States against throe.*
§ ^2. Two points may properly arise upon this subject ^irst,
the propriety of vesting the power in the President; and, sec-
ondly, the extent of the l<^slatirc check to prefeut an undue ex-
orcise of it The former a1«o admits of a double aspect, namely,
whether the negative should be absolute or should be qualified.
An absolute negative on the legislature appears, at first, to be
the natural defence with which the executive magistrate should
be arnit^d. But in a free government it seems not altogether safe
nor of itself a suflicient defence. On ordinary occasions it may
not be exerted with the requisite firmness; and on extrsordinarf
oocanionA, it may be perfidiously abused. It is true, that llie
defect of such an absolute negative has a tendency to weaken the
executive department But this may be obviated, or at least
coimterpoiBcd, by other arrangements in the government such ns
a qiiaiiliod connection with the Senata in making treaties and
appointments, by which the latter, being a stronger department,
may be led to 8up)>or1 the conittitutiunal rights of the fonnei^
without biting too uiAch detached from its own legislative funo^
tioni).* And the patronage of the executive has also some teiH
dency to create a counteracting influence in aidiof its inde{:
ence. ft is true that in England an alisolute negative is
in the king, as a branch of the legislative power; and he
sesses the absolute power of rejecting rather than of resolvini;.
And this is thought by Mr. Justice Blaekatonc and others to bo
a most important, and indeed indispensable part of the royal
' Jonrai] of th« CotmatiaB^ 97.
* Imntl of tiM CNiVMiltoa. IVS, tS*, SU, 85S.
* JoDnMl of Um CoDTwtlw, «, H, IVS, U».
* TU r«l«n1i>t. So. a.
CH. xm.]
PUKajDENT S HEOaTITB.
646
w
prerogntivc, (o ^utrd sgniiut ttic tiHurpittiotM of tiie legifllativc
authorit;^. ' Yet iu poiut of fact tliix aogutivo of the king has not
bc«D once exercised siiico the year lC92,'(a) a fsct which can
only be accounted] for upon one of two sappoeitionts either that
the inilueuce of the crown has prcventoi) the pastiago of objec-
tionable meaaures, or that the exerciae of the prerogatiTe has
become so odious that it has not bei>n deemed safe to exorciae it
except upon the most pressing emei^ncies.* Pmbabl; uutfa mo-
tirca have alternately prevailed in regard to bills which were
disagreeable to the crown;* though, for the last half-century, the
latter has had the muet uniform an*! decisive ojx'ratiou. As the
House* of Cumnioiis becomes more and more the repn'Montatire of
the popular opiujou, the crown will hare less and lc«s induce*
ment to hazard its own inllnencc by a rejection of any favorite
measure of the people. It will be more likely to take the lead,
and thus guide and moderate, instead of resisting, the Commooo.
And practit:ally speaking, it is quite problematical whether a
(jualitied negative may not hereafter in Kiiglnnd become a more
efficient protectitm of the crown than an absolute negative, which
makes no appeal to the other legislative bodies, and cooseqacntly
■ 1 Black. ConiM. IM.
■ Uc LoUm «b CuiulilatioD. ok. IT, pp. SW, S»l ; 1 Kent'i Oini*. LmL U,
P.2M.
* 1 WlbM't Uir Lmi. i4S, 44S ; Th« F*d«niUn. tfo. n ; H. Ifo. «0 ; 1 RtM**
Connt. LmLII, p. lEW. Mr. Enrk*. in U> btur U tiio AeriS* of Bttotol (b i;77).
hu tnaUd ikii sabject with lib naatl mMtarly pawn. "Th« king** *cf^ti<rc to
bitli," uyi hp, "uKuicof Ui«nM*t aMdbp«l«(l(pf tbt rojal pncagativw ; ■lulUeitFiid*
to ill cuw obaUocTct. I Ht far fn» ocfUia tlut tr aomnl Uin. wbkli I know, bad
fftlln Biidct Um itrakc «f thtt vqitttv tlwt tb* pabUo woald . havs had • ttrj liMvy
\<m. Hat it U not Iho proptMy «f tha cawMlaa whkk ia 1« quaaban. TIm «mnlat
itatir ■• •i)»l]r rortBTiie. Il« NpM* ma; tc lli« ptMarvatinn of ita tnUltrne* ; »mI Ua
MtiaUnca M17 be tb« jnaana of MTing tha Conatitullon itadl^ on an osoaaion wortlij «(
WiBflac It ()>»)■.'-(*)
* iTock. Bluk. CMau. ApfiL 2SG, K«; 1 K*tit-«CVMiiM. LccL 11. p. tM.
(a) It WM OBM MMwiaid hj <}«•««■
Anne in ITOT. C.
ft) It nia; ba aoMMiatad ftir p*rfiapa In
anallwr <nf. By lb* tliMTjr «f tbe Bril-
JA OMMtilutkm, aa now arttM. tb« al»-
Iali7 ii»dar fHam adrlea the king acta
Uiud b« In ward with tka najoritj in
the Hainw of ('anira«n% a»d poa«oi> It*
ttmlliUMc; aadwbdunriUTaUadMnen'
that thtf ^<* I"** til** tttMrnet,
tlMT miul (ithsr naiga «t ba dlnnimtd,
or iIm; mnal advUe • dk»ol«tian <4 tha
Parllanunl with aviaw toaii aiipol tolh*
pmpla. ro«ti«niptIi>iT«ain|>i>i'>ratciiini4
adreiaa wte* is the OiMnnoai wooLl of it>
mV ba npwdad m aneonatiuitional ; atill
mora mail il be ki to altnnpt to wotrol
that iMtlocity ibreoHW th* rojntl t«Io. Hh
Todd, PkH. 0«r. I- 40 i Cooloy-B BUck-
Mooo, L M<,not«b
646
CONSTITDTION OF THE UKITKD ETATEft. [BOOK III.
compt-U the crown to bear the exclnsive odiom of a rejection. '
Bo this as it may, the example of England funiiithra, on tlit«
point, no sufficient authority for America. The whole stnirturc
of our gOTcrnment ia &o entirely different, and the e!cm<>ntA of
which it ia composed arc so distiimilar from that of England,
that no argument can be druwn from tho practice of the latter to
assist UB in a just arrwugomout of tho executive authorily.
§ 883. It has bet-n olMtTVcd by TAr. Chancellor Kent, with
pithy elcgimcc, that the peremptory veto of the Roman tribunes,
who were placed at the door of the Roman senate, would not Iw
recoueiluble with the spirit of deliberation and indv[^K:'udcnc«>
which distinguishes tho councils of modem tim«s. The French
constitution of ITfll, a labored and costly fabric on which the
phi losophei-s and statesmen of Franco exhausted all their inge-
nuity, and which was prostrated in the dust in the course of oa«
year from its existence, gave to the king a negative upon the
act« of the legislature witlt some feeble limitations. Every bill
was to be presented to the king, who might refuse his aasent;
but if the two following legislatures should aneeessively present
the same bill in the same terms, it was theu to become a law.
The conatitutional negative given to the President of the United
States appears to be more wisely digested than any of the exam-
ples which have been mentioned.*
§ 884. The reasons why the President should possess a quali-
fied negative, if they are not cjuite ol)vioii!i, are at leaat, when
fairly expounded, entirely satisfactory. In the first place, there
is a natural tendency in the legislative department to intmde
upon the rights and to absorb the powers of tlw other depart-
ments of govenuncnt.' A mere parchment delineation of tho
boundaries of each is wholly lUiiufKcioat for the protection of the
weaker branch, as the exc«utive unquestionably is, and beuoc
there arises a constitutional neceaaity of arming it with powers
for its own defence. If the executive did not potwcss this quali-
fied negative, it might gradually be stripped of all its authority,
and become, what tt is well known the govemura of sutno States
are. a mere pageant and shadow of magistracy.*
1 Stc till* nWDnins in The Fedtmliat, N& TS t Id. Ho. U i 1 WOwn'* Uw I.Mt.
4 IS. Ut.
* 1 KcniV Oonwa. Lett. II, i>|x «M, »T.
■ I Kitiii'ii Coaiin. Lfct. II. fp. £!5. S3« ; Tlie F«dnBlbt, Ko. n-. Id. Ko. Itl.
* Tlio I'V'I'rrslitt, Xm. G1. 73; 1 Taak. Black, OMsm. Ap|L US, »!ta ; I WUmm'i
Uw Lt«t. <4S, U9 i 1 Etat'* Couun. L««t. 1], pp. S£S, £31
CH. XIII.]
PBBSIDEKT'S NEGATtTE.
647
§ 8S5. In tltti next place, Uic power ift importaut as aa ftddi*
ti<nial security Kgniiut tlie cDactmcnt of m^h, iintnature, and
i]npru{M.T lun-«. It cfllalMislies a salutary check u]>on Utc legin-
latirc bod}', calculated to preserve the community against tlio
cITccta of faction^ precipitane/, unconsitiitional legifllation, and
t^»i[Hirary excitemcntH, aa well an political bofitility.' It may
indeed l*e aaid that a ninglo man, ercn though he bo Prcaideut,
cannot be pi-esumed to posaesa more wisdom or virtue ur expe-
rience than what l>elongH to a number of men. Gut this fur-
nishen no anawer to tlie reasoning. Tho question is not how
much wisdom or virtue or experience is possofitH-^l by either
branch of the government (tiiough the executive magistrucjr may
well be prt'sumod to bo eminently distinguishtMl in all tiicso re-
spects, and therefore the choice of tlic jjcoplc), but whether the
legislature may not be laisled by a tore uf power, a spirit of fac'
tion, a ])olitioul impulse, or a jwrsuosive inllucucc, local or ecc-
tional, which at the same lime may not, frt)n) the difTercnce ia
the election and duties of the executive, reach him at all, or not
reach him in tJic same degree. He will always have a primary
inducement to defend hia own powers; the trgiftlatiire may well
be prcsuuK'd to have no desire to favor them. He will have aa
opportunity »')1)orly to examine the acts and resolutions pasaed
by tht! legislature, not having partaken of the feelings or oombi*
nations which have procured their paasage, and thus correct
what shall sometimes t>e wrong from haste and inadvertence as
Kfill aa design.* llis view of them, if not more wiso or more
Bvated, will at least be indejtendent, and under an entirely
lifferent resiKtnsibility to tho nation from what I*elonga to tlicm.
Uo is the representative of the whole nation in the aggregate;
they are the leprcscotativcs only of distinct {tarts; and some-
times of little more than sectional or local intcriTstA.
§ 886. Nor is there any solid objection to this qualified power.'
If it should be objected that it nmy sometimca prevent the pas-
sage of good laws as well us of bad laws, the ohjocliuu is en-
titled to but little weiglit. In the first place, it can never be
effectually exercised if two-thirds of both houses arc in favor of
the law, and if they are not it is not so easily demonstrable that
> Th« r^]tmlit^ Ho. n ; I Wlbon • Uw ImL iiS, MB, 4&a
• Tile Fhknilirt. Ho. 79.
• 1 Tack. BLuk. Ccwni. 221, 321 ; 1 Knt'* Coiiun. t>rt. 11, pf>, S2S, SM.
648
C0N8T1T0TI0N Ot THE PNITED STATES. {BOOK tO.
the lav is either wise or salutary. The prvsiimption would rather
be the other my; or ut )i»st that ihe ulility of it was not un-
questiuDuljlo, or it would roct-iro the requisite support. In the
liext place, tbo great evil uf all free guvuniiDcnta U a t«iidency
to over-leirislatioD, ajid the mischief of iucotutancy and mntabil-
itjr iu the laws (lynua a great bleuiish in the character and f^iiius
of all free gox'eninients. ' The injury whioh may pnsail>ly ariM
from the ^stjxjiteineut of a salutary law is far less thau from thai
passage of a inischiei'Ous one, or from a redundant and vacillate
tng le^lation.* In the next place, there is no practical danj^r
that this power would be much, if any, abuaed l>y the Preciident.
The superior weight and influence of the legislative body in a^
free ii^rernmcnt, and the hazard to the weight and inSuence of
the executive in a trial of strength, aSnrd a satisfaetory security
that the power will generally be employed with great caatioo,
and that there will be more often room for a charge trf timidity
than of rashness in its exercise.' It has been already seen that
the British king, with all his sorcreign attributes, has rarely in-
tetpoBcd this high preregntht;, and that mure than a century has ,
elapsed since its uctunl upplieutiua. If from the ufTcusive natvra'
of the power u royal hereditary executive thus indulges serion*
scruples in ita actual exorcise, surely a republican president,
chosen for four years, may bo presumed to be still more unwilling
to exert it;*
§ 887. Tlic truth is, as has been already hinted, that the real ,
danger is that the executive will use the power too rarely. Ha
will do it only on extraordinary occasions, when a just regard to
the public safety, or public interests, or a const itutional obliga-
tion, or a necessity of maintainiug the appropriate righta and
prerogatives of his ollioe compels him to the step;" and then it
will be a solemn appeal to the people themselves from their own
representatives. Even witliin these narrow limits the power is
highly valuable, and it will silently operate as a preventive
check, by discouraging attempts to overawe or to control the ex-
ecutive. Indeed, one of the greatest benefits of such a power is,
that its influence is felt not so much In its actual exercise as
in its silent and secret energy aa a preventive. It checks the
intention to usurp before it has ripened into an act
■ Tha Fcdenlwt. Ko. TS.
* IbiiL
* ibM.
* Ibid.
PRn]DEKT*8 NBOATIVE.
«40
§ 888. It has this additional rooommeiidation, aa a qualified
negative, that it docs not, like an abBolute negative, present a
eategorivat and harsh resistance to the legislative will, which is
80 apt to engender Htrifc and noumh hostility. It aaauinm tlie
character of a m«rtt uppcal to the legiHlatnro itself, aud aaks a
revision of its own judfrmwit' It is in the nature, then, merely
of a rt-heariiiB or u rcouuHidcrution, and involves nothing to
provoke resentment ur rouse pride. A President who miitht hen-
itatc to defeat a law hy un absotute veto might feel little scruple
to return it for rccunsideratiun upon reasons and arguments sug-
gesU-d uu the return. If thoiu> were mitisfaetory to th<! legisla-
ture, he would hare the ehecrinf^ support (tf a respectable portion
of the l>od,v in jiiBtification of his conduct. If, on the other hand,
thejr should not be satisfHCturv, the concurrence of two-thirds
would seeurc the ultimate passage of tltc law without ex|>o«iiig
him to undue censure or reproach. Even in each cases his op-
positiou would not be without some benclit His observations
would be calculated to excite public attention and discussion,
to lay bare tlie gmundit and policy and constitutionality of meas*
urea,* and to create a continued wat<;hfulnes« aa to the practical
effect of the laws thus passed, so as that it might be ascertained
by experience whether his sagacity and judgment were safer than
that of the legislature.*(<i) Nothing but a. gross abuse of the
power M|ion frivolons or party pretencea to w^ure a petty tri-
■pnpfa or to defeat a wholesome restraint would bring it into con-
-^mpt or o«)iuni; and then it would soon be followed by that
remedial justice from the people in the exercise of the right of
election, which, first or last, will be found to follow with reproof
or cheer witli applause the acts of their rulers when pnssion and
prejudice have removed the temporary bandages which have
blinded their judgment. Looking back upon the history of the
> Tte FedonlitI, Ko. T3. * KnvU on titt Connitvtloa, <^. «, pp. 01, 43.
* Wlno't Uw LccL I49v 4S0 ; Tbs F«d«talMt, Ko. TS.
In lh« sdmiButntkau of Prm>UnU Tj^Ur
nti JobMon. Hid durint; Iha vtule of
tb* fenuvr, (iniwnant lagialaliM wn coo-
Uollwi )iy inMtit llwnof. Sam* fttt«DBpt
wu maila to abolidi th* poim uniUr llin
fctlinf wccitBd.bui ItdiiliuitBwMwUliuy
Ttfjr deddcd bmr. Mi. D*vii, darfiv
Uw nJrtaiio* at Iht Canbd«nt* Bbtim
gortnmtnl, U mJ<1 to luva Mnploffd tb«
rrta pawn wiUi gn^t fiocdotn, uid to
tun exokmhI bjr th>t mmiu « oontralUnit
Mitluirily in thnCoiiKT*M nn all Isiportuit
iDMNrN. Foote'i W*r of Ik* RtbriliiM,
650
CONSTtTOnOS OP THK DKI7ED STATES. [BOOK HI.
gQveromcnt for tlio laitt fort; yeara, it will be found tliut tliu
President's ucgativo baa been nirel;r exertod; *nd wheuevvr it
hug been, no iii8Unc« (it is )>e1ievei)) has occurred in whicb the
«ct has been concurred in by two-thirds of both houses. If the
public opinion has not in ail eases sustained thia exercise of
the veto, it may be aHinnod that it baa rarety been fouud that
the disapprobation has been violent or unfiiialitied.
§ 881>. The proposition to unite the Supreme Court n-itb the
executive in the revision and qualified rejection of lairs failed, as
has been seen, in tlie convention.' Two reasons seeni to have
led to this result, and probably were felt by the people also as of
decisive weight. Tlie one was, that the judges, who are tbe
interpreters of the law, might n>ceivo an improper bios from
liHvini; given a previous opinion in tlioir revisory capacity. Tite
other waa, that the judges, by being often aasociatod with the
executive, might be induced to embark too far in the political
views of that magistrate; and thus a dangerous coutbiuutioD
might, by degrees, be cemented Wtwccn the executive and judi-
ciary departments. It is impoHsiblc to keep the judges too dis^
tinel from any uthur avocation than that of expounding the laws]
and it is jieculiarly dangerous to place them in a situation to be
either coi'ruptcd or influenced by the executive.' To tticse may be
added another, which may almost be deemed a corollary from
them, that it would have a tendency to take from the judges that
public oonHdunco in their ini{>!krtiality, indL-pond(>n«', and inte|i
rity which M.'cni iudispeusuble to the due udaiiuititrutimi of puli
lie justice. Wliatcver has a tendency to create Buspicion or
provoke jealousy is mischievous to the judicial department
Judges should not only ite pure, but be believed to bo so. Tbo
moral intlueiicc of their judgments is vcakcncdt if not destroyi-d,
whenever there is a general, even though it be *ji nnfoundM,
distrust that they are guided by other motives In tlie diiM'harge
of their duties than the law and the testimony. A free people
havf no Hocurity for their li))erties when an ap)<eal to the judicial
department becomes either illusory or questionable.' (u)
» JoarwJ of CoDTBntlon. 195, ilS. » The F*drniUtt. Ko. 78.
* It U • nMftikaU* circuniBiancv in llio hiatoiy of Ur. JtStno*'* optniMu, Uui tw
|«| la the Kev York Mimdl of r*- court nvn MMdatad wilh His Bnrmnr]
ruaon imdn tbt fin* coaatitntion. tbo but It did not prave ■
chanwilor «m1 jnatioM «t tba rajntsie wruigcaictit.
CB. xin.]
PHESIDENTS KBOATIVe.
651
§ 890. The other point of inquiry in, as to (lio extent of the
legUUtivo vliock upun the iicgutivc of thi.- executive-. It has biiin
ama that ft wm origiually proixwcd thiit « cuncurrouoe of two-
thinln uf caoh house should he required, thnt t)iia wus Aubae-
quvntly alteivd to three-foitrths, wid was finally brought back
in to the original number.* One reason ugninxt the thrce-
r<jiirthi« BCi-iits to have been tJiat it woolil aflfnrd little nwrurity
for any efTwIual exercise of th*> jxtwer. The larger tlio nutuber
required to overrule the eswutivo negatire, th© more easy it
;wou1d be for him to exert a flilent and secret influence to dvtacli
he requisite numlier in nnler to carry hia ol>ject. Another rea-
son was, that, even suppooing no such influence to be exerted,
still, in a great variety of cuHett of a politieal natuit?, and espe-
cially such as touched IocaI or sectional intereats, the pride or the
power of States, it would be eaay to defeat tbo most aaltitar}-
meimurea, if a combinution of a few States could produce sueh a
result. And the executive himself might, from his local attach-
ments or 81-etional feelings, pnHakc of this coiamoii bias. In
addition to this, the degiarture from tlie general rule uf the right
of a majority to govern ought not to be allowed but upon tlie
Imoat urgent occasions; and an expression uf opinion by two-
thirds of both houses in fnvor of a measure ccrtJunly alTorded all
tlie just securities whieh any wise or prudent people ou};ht to de-
mand in the ordinary course of legislation; for all laws thus
passed might, at any time, l)e re)(ealcd at the mere will uf tlio
majority. It was also no small recommendation of tlie lesser
'number, that it offered fewer inducements to improjier coiu)>ina-
tions, either of tlie great States or the small States, to occom-
jlish particular objects. There could l>o Imt one of two rules
loptcd in all governments, either that the majority slutuld gov-
ern or the minority should govern. Tbfl Prcaideiit might bo
■ehonen by a bare majority of electoral vott^s, and this mnjortty
tight he by the combination of a few large States and by n mi-
nority of the whole people. Under such circuntatances, if a vote
of throe-fourths were required to pass a law, the voice of two-
WM draddtlj in bror of •MociMtbig th* jia^iauy «ith Ubi' Dxeeutin) lu tii« txtmhi ol
tbt ortgatire on lair*. «r oC inroiU^ it tepmnttir with a dinilar pumr. 1 JtCMiwa'*
Connp. 3< 4 ; 3 Pitk. S83. At • nitM)|amt |»ria4 Ut oftiuoii iwjwcUjw tin* viIm
*nil lin|>orUu« latm* to havt iwdeisona cxtnonliRruj chaa^w,
> Juunul of tbc OoanuUaR. ff. KO, lOS. tCI, SM.
652
coKSTrrunON Of the united states. [book m.
thirds of the Statea and two-thirds of tho people might be per-
moiiontl; diaregardcd during a whole administration. The csae^
put may serm strong; but it is not strotif^r ttiuo thv HU{ipo6itioii,
that two-thirds of both hounes would be fo<ind ready Ut butray the
solid intercsta of th«ir cotiatituents by the passage of injurious or-l
uncoHRtitiitional law«. The provision, therefore, as it stands,
affurda all reasonable security; and, pressed further, it would
Gudanger th« very objects for which it is introduced into the
OonstitutiuiL
§ 891. But tli« President might effectually defeat the whole-
some restraint, thus intended, upon his qualified nugatire, if be
might silently decline to act after a bill was presented to him for
approval or rejection. The Constitution, therefore, luis wisely
provided, that, "it any bill shall not be returned by (lie Presi-
dent within ten days (Sundays excepted) after it shall have beeo
preaeuted to him, it Hhall be a law, in like manner as if he had
signed it "'(a) Hut if this clause Stood alone. Congress might,
in like manner, defeat the due exercise of bin qualilied negative
by a termination of the sofwion, which would render it impossi-
ble for thf President to return the bill. It is therefore added,
" unless the Congress, by their adjournment, prevent its retom,
in which cose it shall not be a law.'*
§ 892. The remaining clause merely applies to ordert, rrtolu'
tieti*, and voIm, to which the concurrence of both houses may be
Dcocssary ; and as to these, with a single exception, the same
rule is applied as is by the preceding clause applied to &i7/«. If
Uiis provision had not been made, Congress, by adopting the
form of an order or resolution, instead of a bill, might have
> The original propoillkiii in tlio con rtutiaa iru, that lb*UU*bonU boNUnad hf
tha PmliU&l ill mpm lUya- ll wu >iiitdi>|iiKiiily alurril tv Ira ilsjr* bj ft ml« «C mitM ,
gtatM ■pln«t two. JoariMl of Counntiuii, 330, SSI, iSS.
(a) It ho* born Ud that tho ttnu
■pecifled will Indaila lUyt an >hlch tho
li|C<iJaMni U not In muIou, it it bw not
tlnat\j tdjauntti. Ojiioioot or Jnitice*,
4S N. H. <07. Bat tho daj of pnwntiug
tlio UU (ot affnnl (hould ba ncdiuM.
Ibid. Vfhtn m tho Unth iaj tlio p>r-
imor •mt • bill «Ilh ht* oli^wtiuDs to th«
hnuo «ilh which il ori^nattd, btrt the
anger, &iili^thobouohadft4)oniMd
tw tho dfty, MtDTDod it to tbo gAvmar. -
who ntatnod it, U waa li«l<I that, to ft**
Tont the tdU boooming ■ law, it iImiiM
have bom left with tlw ]irD|ar oMotr of
the house lutttad of hilaf rwtainod bjr tbi
govmior. HiT|<eii(liiif e. Uaiglit, 3S CaL
169. Aa to >hni u) approT*! la Ui bo
dtonwd totBpble, wa Poopla a, Uatdi,
19 m, S83. I
CH. XIII.]
PSBBIDEKT'8 NEGATTTE:
668
effectually defoatM th« President's qualified negative in all the
most importunt portioiw of lugislation. '
§ 893. It has becu rcirutrkod by Ih; Lolmc, thnt in most of the
anoii-nt free Htotos, tlie share of the people in tliv biuiness of lo-
git«lation wM to npprove or reject the propositioiM which wore
itiailc to Utein, and to give the final sanction U> the law-K. Tlte
fuiiclioiis of those persons, or in general those bodies who were
intnmted with the executive power, were to prepare and frame
the laws, and then to propose them to the pcc^le. In a word,
thej pwisessed that branch of the legislative power which ma/
bo called the initiative, that is, the prcn^tivc of putting tliat
power into action. In the first times of the Roman republic, this
initistive power was ooostantiy exercised hy the Roman senate.
Iaws were made popuii Jwmu, «c avthoritaU tenati; and, even
in elections, the candidates were subject to the previous appro*
bation of the senate. In modern times, in the ropablics of Ven-
ice, Ilerne, and Genera, the same power is, in fact, exercised by
a select assembly before it can be acted upon by the larger aa-
scmlily of the citizcua, or their representatives,' De Lolme has
added that this power is very useful, and perhaps even necessary,
in states orf a republican form, for giving a permanenc« to the
laws, as well as for preventing political disorders and struggles
for power. At the same time, he is compelled to admit that
this expedient is attended witli inconveniences of little less mag-
nitude than the evils it is meant to remedy.* The inconveniences
are certainly great, but there arc evils of a deeper character be-
longing b> such a system. The natural, nay, necessary tendency
of it is, ultimately to concentrate all power in the initiative body,
and to leave to the approving liody )>ut the shadow of authority.
It is in fact, though itot in form, an oligarchy. And, so far
from its l>eing asefut in a rcpablic, it is the surest means of sap-
ping all its bc«t institntinns, and overthrowing the public liber-
ties, by corrupting the very fountains of legislation. De Lolme
praises it as a peculiar excellence of the British monarchy.
America, no less, vindicates it 8S a fondamontal principle in
all her republican const ilut ions,
§ 9&i. We have thus passed throngh all the clauses of the
' Jevmal of ContentMiii, n- *^ ^^•
■ D« Utipc, Ej«. Com* a 9, «k. i, p. 934, aad aott.
• Dc Loime, Knff. ConiL B. 3, ch. 4, p. Si, uul aMe.
654
CON)?riTUTIOK OP THE tIKlTBD STATES. [UOOK III.
CoofttitutioD respecting tho structure and orgaiuKaiion of the
li^slative department, and the riglitii, powerg, and privileges of
the component branL-ben scrcrallj', (m woll as in tlie ntr^rcgnti-.
Tlie natural ordor of Uiu Cuiistitutiou next IcadK us to Ihu uun-
Btdei-ation of the powbrs which are vested, by the Constitutiou,
ID tJie legislative dopaitnient. Before, however, entering upou
this Eai)^ and important inquiiy, it maj tie useful to state, in a
sunininry manner, the ordinary coarse of proceedings at each
uw st-»»inn of Congress, and the mode in which the laws arv
usually pasaed, according to the settled usages in Congress,
tnider the rules and orders of tho two houses. In substance, it
does not differ from tho manner of ctMidueting the like business
in ttw British Parliament.'
§ 895. On lite day appointed for tho assembling of a new Con-
gress, the aierobors of each house meet in their separate apart-
ments. Tho flotise of Kopresentatives then proceed to the choice
of A speaker and clerk; and any one memlier is auUiuriKcd then
to administer the oath of oflwe to t>K' speaker, who then admin-
isters tho like oath to the other members and to the clerk. Tho
like iialh Is administered by any mt^'mber of the Senate to the
presideut o( t)ie Senate, who then admiuisturs a like oath to all
the inendH-rs and the secretary of tlie Scuate; and this procc
ing is had, when and as oftoo as a new president of the $eaat«y1
or meml>cr, or secretary, is chosca' As soon as these prelimi-
naries are gone tlirough, and n <)tioriim of each house is present
notice is given thereof to the President, who signifies his intea-^
tlon to address them, lliis was (ormerly done by way of speech,
hot is now done by a writti>n message, tnuumittod to each he
containing a general exposition of tlie affairs uf the natiuo,
a recommendation of such measures as the President may df
fit for the consideration of Congress. When the habit was fur
the President to make a speerh, it was in the prc«eiioe of both^
bouses: and a written answer was prepared l>y each bonw, whicli
when accepted, was presented by a committee. At prwent, no
answer whatsoever is given to the eontent^ of the mransgr
this change of procoeding has been thought, by many sCatesmavl
to bo a change for the wotso; since the answer of each bouK oh
> 1 Tm^. Blktk. Omm. i|ip. iaa, M*: i Bk^
rutim : 1 ira«aa^ Urn Uot. 171 to in
Wl;
* Act of ITSIk «k L
CH. xm.]
FROCEBDINOS OP C0N0BEE8.
655
»bled ench party in the Icgittlaturo to express its <nm xievra m to
tho mattcra ill the »iM7Cch, and to propose by vray of smondment
to the uiswer whatever was dcomtMl more correct and more ex-
presdire of pablic scntimeat than wus contaiiie'd in vitbcr. The
consequence was, thut the wliole policy uud conduct of the ad-
ministration came under solemn review ; and it was animadverted
on, or defended, with e*jual zcul mid indcju-ndeiice, according
to the diff<;reiit views of the spcnkers in the debate; und the final
vote showed tlie exact Mate of public opinion on all leading
measures. By the projtent practice of mesiiagcs, this facile and
concentrated oppnrtunity of attack or defence is completely taken
away; and tho attack or defence of the adraiiiistraliOD is perpet-
ually renewed, at diRtaQt intervals, as an incidental topic in nil
other diaciistiions, to which it often hears very alight, and, per-
hape, no relation. The result is, that a great deal of lime is
lost in collateral dcliatcs, und that the administration ia driven
to defend itself lo detail, on every leading motion or measure of
the session. '
§ 896, A hill may bo introduced by motion of a member and
leave of the house ; or it may be introduced by order of tiie hoiiac,
on tho report of a c»mmitte<e ; or it may be reported by a com-
mittee. In coses of a general nature, one day's notice is given
of a motion to briujr in o bill The bill, however introduced, is
drawn out on paper, with a multitude of blanks, or void spaces,
where anything occurs that is dubious, or nccesaary to be settled
by the house : sucli, especially, as dntos of times, sums of money,
amount of {xrimltic-s, and limitations of numlK-rs. It is then read
a first time, for information; and, if any opposition is made to
it, (he ({nestion is then put, whether it shall be rejected. If no
opposition is made, or if the iptestion to reject ia negatived, the
bill goes to a second rending without a qurntion, and it ia accord*
ingly read a second time at some convenient distance of time.
Every bill miisl receive three readings in the house pri'vious to
its passage; and these readinga are on different days, unlcM
upon ft special order of the house to the contrary. Upon the
second reading of a bill, the spi-aker states it as ready for com-
mitment or engrossment If committed, it ia committed either
> llniln' Fmi(I«Bt WMliinglMi uil PnitdBnt J«1ib AJmd* tlie ptarUc* «m to d»-
]iTcr spcodK*. Pfwidtat Jttenem diioMrtiancil UiU oonnM, lad Mb«titiited mMMgw ;
tad tkU fnctJM bai bsca doca inTuiftUj loUoirML
656
ooKsnnrnoK or thi: uxited statis. fuooK m.
to ft 0Oleot or a standing committee, or to a committee of tbe
whole house. If to the latter, tho bouM determine on what dav.
If the bill is ordered to bo engroned (that i», coptitl mit in a
fair, large, round hand), the huuao then appoint the day wh^n it
shall be road the third time. Uo0t of tho important bills are
committed to a eommiltue of the whole hou8«; and every motit
or pro|)odiUon for a tax or eliarge upon tiie people, and for a i-a-^
riatioR in the som or quantum of a tax or duty, aiid for an appro-
priation of money, lii required firet to be discussed in a committee
of the whole hoitse. The great object of referring any nuttier to .
a committee of the whole bouse ia, to allow a greater freedon
of di»cu9.<(ioR, and more times of speaking, tlian in generally al*
lowed by the rules of the house. It aeems, too, that ttin yeas onlj
nays are not required to bo taken upon votes in coraiuittee,
tliey may be in ^otes in the house.
§ 897. On going into a committes of the whole honse the
speaker leaves tbe chair, and a chairman is appointed by him to
preside in committee. Amendments and other procLtodintiis are
had in committee, much in Ibe same way as occur in the n>jrularj
course of tho business of the house. Select and standing com-'
mittces regulate their own times and modes of proceeding acoord-
ing to their own dispretion and pleasure, unless otherwise ordered
by the houso. They make their reports in the same way, from
time to time, to the house, and secure the directions of tho lat-
ter. When a bill is eommitted to a committee, it is read in srv-
tiona; paragraph after paragraph is debated; blanks are filled
ap; and alterations and amendments, both in form and sub-
stance, are proposed and often made.
§ t[D8. After tlie committee have gone throngh with the whole
bill, they report it, with all the alterations and amendmenta
made in it, to tlio bouse. It is then, or at some snitable (ir
aftcrwunlit, considered by the latter, and the question iiejiaraleljr^
pnt upon every alteration, amendment, and clause. After com*
mitment and report to the house, and at any time Iwforo its
sage, any bill may be recommitted nt the pleuAore of tlie boose
When a bill, either upon a rejwrt of committee or after full dia
cussion and amendment in the house, stands for the nest stai^
of its progress, tho question then is, whether it sliall be en-
grossed and read a third time. And this is tho profier timi;,
commonly chosen by those who are fundamentally c^iposcd to i^
en. xin.]
PROCBEDIKCS OP COXGRBSa.
637
to make their attack upon it, it now ))cinf; as perfect m !ta fricnOs
can shape it, ami as little exceptionable as its ciioniivs have bocn
able to mnlce it. Atleinpts are, indeed, soni«lim«s inado at pre-
vions sta^s to defeat it, hut they are usually disjointed ufFurls;
because many peraona who do not expect to he in favor of the
bill ultimately, are willing to let it go on to its most perfect
state, to take time to examine it fur theouielTea, and to hear what
eon be said in its favor.
§ 899. The two last stages of the bill, namely, on the ques-
tions, whether it xhall have a third readinff, and whether it Hhall
pass, are the struti); pi>iiitii of reBiHtancfi and defence. The first
is usually the most interesting contest, because the subject i»
more new and cni^i;ing, and the trial of utrength hiis not been
made; so that the strugtclc for victory is yet wholly doubtful,
and the ardor of dcbuto is proportional ly warm and enniest If
the bill is ordered to be enjmissed for n third rcadinj^, it is,
when engrossed, pot upon its final passage. Amendments anj
Bometimos made to it at this stage, thotigh reluctantly; and any
new clause, tlius added, is called a rider. If the role is that the
bill sliail pass, the title is then settled, though a title is always
reported with the bill; and that being agreed to, the day of its
passage is noted at the foot of it by the clerk. It is then signed
by the siMmker, and transmitted to the other lioitsc for concur-
rence tlierein.
{ 900. The bill, when tJius transmitted to the other house,
goes throngh similar forms. It is either rejected, committed,
or concurred in, with or without amendments. If a hill is
amended by the house to which it is tnuisniittetl, it is then re-
turned to the other house, in which it oiiifinatod, for their as-
sent to the amendment If tJio aiuendmcut is atrreed to, tJie fact
is made known to the other honsa li not agreed to, the disa-
greement 19 in like manner notified. And the like courHc is
adopted, where the amendment is agreed to with an amendment
In either of these cases, the house proposing tJio amendment
may recede from it. or may adopt it with tJie amendment pro-
posed by the other house. If neither is done, tlic house then
vote to insist on tlw) amendment or to adhere to It A rote to
insist ko<.-|K< the i|ue8lton still open. But a rote to adhere re-
quires Uic other bouse either to insist or to recede; for if, OR
their part, there is a vote to odbcre, the bill usually falls without
VOL.1.— 42
658
CONSnTDTION OP THB USTTTBD
[book m.
furUior effort. But, upon a disagreemont between tbe two bouses,
a ccmfcrcnfic by a committee of each is UBiially asked; and id
this itiAimcr the mattere in controversy are generally adjiislcil by
U'lu()(ing the course ret^onmifinded br the conunittees, or one i4
them. When a bill has patwed both houiws, the house last acting
on it makes known its passajp! to the other, and it is delivered
to the joint committco of enroUnont, who see that tt is truly en-
rolled in parchment, and, being signed by tbe speaker of tbe
house and the president of tho senate, it is then sent to the Prvs-
idont fur his signatuni. If he approves it, he signs it ; and it is
then deposited among the rolls in the ofhco of the dvpartmeDt uf
state. If he disapproves of it, he ret<inis it to the house in whivjl
it or)ginnt«d, with his objections. Here they arc entered at large
on the joiimttl, and afterwords the house proceed to a cuusidcr»-
tion of them.'
§ 901. This rci-iow of the forms and modes of procet-dtng in
the passing of laws cannot fail to impre^ ujion every mind Uio
cautions steps by which legislation is guarded, and the solici-
tnde to conduct business without precipitancy, rashness, or irr
utarity. Frequent opportunities are afforded to each bousu
review their on-n proceedings; to amend their own erruni; to
correct their own iuadvortencii's; to recover from the results of
any pms^ionnle excitement; and to reoon^ider the voti.>s to which
peraiuisivc eloqucncfi or party spirit has occasionally misled their
judcmcnts. Under such circnraatances, if legislation 1a' unwii-e
or loose or inaccurate, it lielonfrs to tlie infinnity of human na-
ture in general, or to that personal carelessness and indifTor
which is sometimes the foible of genius as well as the accom-
paniment of ignorance and prejudice.
§ 902. Tbe structure and orgauixation of the several branet
composing tho legislature have also (milcss my jut^ient ba
misled me) !>oen shown by the past review to be admirably'
adapted to preserve a wholesome and upright exorcise of Ibeir
powers. All the ehccks which human ingenuity has been abie to
devise (at leasts all which, with reference tu our habits, tnstitii*
tiona, and local interests, seemed practicable or desirable) to git
> TUi Mmnur; b ■b4tr>cl«l ttma I Bbck. Coam. 181, IBS : 1 Tntlnr'a tUuk.
Coinnu A|>i>. 2-2ii, ZM. iioU ; 1 Ktni, Coinm. Lcot. II, fp. SIS, S£t ; S Wilton't Ij,«
Ln*. ITI, ITS; ITS ; IUi>W on lli" Oonttituiion, eli. 6, p. dO, nt& : and tnjmitUj (aim
tha nil*i of both boium, eaA Jttlvnaa't Uaaiu] f*ditio« al WulilngUa, IStt),
CR. xni.]
HODK or PAaRDiO LAW9.
9S»
{Ktrfect operation to the mochincry of government, to adjust all
its niovementg, to prevent its eccentriciti<>9, anil to halanoc it«
forces, — Ail these have t)een intr^Mluccd, with siituciilar skill, in*
gennitv, and wisdom, into the structure of the Constitution.
§ ltU8. Vet, after all, the fabric may fall; for the work of
man is perishable, and must forever have inherent cienteuts of
decay. Nay, it must perish, if there be not that vital spirit in
tlie people which alone can nourisli. sustain, and direct all its
moromenta It is in rain that statesmen shall foi-m plans of
^vemtncnt in which tho iMtauty and harmony of a republic sliall
he pml)odicd in visible order, shall be built up on solid substruc-
tions, and adorned by every useful ornament, if the inhabitanta
Htitler the silout power of time to dilapidate its walls, or crumble
its inaiiay 8U|i)>urtura into dust ; if tllc asHsults from without are
never resisted, and tl)e rottenness and uiininp from witliin aro
never yarded (igainMt. Who can presonit the rights and lib-
erties of the pco[)k% when they shall be nbauduned by (hcm-
st'lvo« ? Wlio shall kbop wut«h in the temple^ when lite wuU'bmea
sleep nt llieir |io8t8 ? Who sliall call u(>«in the people to redeem
their possessions, and revive the republic, when their own hands
hare deliberntely and corruptly surrendered them to the op-
pressor, and huvo built the prisons, or dug the fcraves, of their
own friends ? Aristiitle, in ancient times, upon a large survey of
the republics of foniier days, and of the facile manner in which
they had been mode the instruments of their own destruction,
felt himself compelled to the melancholy reflection, which has
been painfully rept'nled by one of the greatest statesmen of mod-
cm times, that a democracy has many striking points of resem-
blance with a tyranny. "The ethical ehametor," says Edmund
Burke, "is the name; l>oth cxoreine dcsjMjlisiu over the better
class of citixens; and the decrees aro in the one what ordinanees
and arrSts are in the other. The dftna-fo^iu, lito, and the court
favorite are not un/requently the same ideiUieal titrn, and alwayt
bear a ehte analogy. And these have i\ve principal power, each
in their refl|iect)\'« governments, favorites with the absolute
monarch, and demagogues with the people, such as 1 liftve
described."'
§ 004. This dark pictnre, it ia to be hoped, will never be
) Iturki em Ui« FV*n<rli Btvolvlioo, iwte ; ArisbXH roUt. B. (, eh. 4. Sm Mcntw-
■(Uira'i Sprit oC Lain. B. 8, JMM^m.
660 coNSTmmoN of the umttbd biates. [book in.
applicable to the republic of America. And jet it affords a
warning which, like all the leesons of past experience, ve are not
permitted to disregard. America, free, happy, and enlightened
as she is, must rest the presetration of her rights and liberties
upon the virtue, independence, justice, and sagacity of the people.
If either fail, the republic is gone. Its shadow may remain
with all the pomp and circumstance and trickery of gorenmient^
but its vital power will have departed. In America, the dema-
gogue may arise, SB well as elsewhere. He is the natural though
spurious growth of republics ; and like the courtier he may, by
his blandishments, delude the ears and blind the eyes of the people
to their own destruction. If ever the day shall arrive in which
the best talents and the best virtues shall be driven from office
by intrigue or corruption, by the ostracism of the press, op the
still more unrelenting persecution of party, legislation will cease
to be national. It will be wise by accident and bad by system.
ca. xtY.}
POTBBS OF CONGBESS — TAXES.
661
CHAPTER
POVBBS OR CONGBESS.
§ 905. We hare now arrived, in tlie courao of our inauiries, at
the ei^th section of tbo lirat arocio of the Constitution, wt
contains an enumeration of the {riiid|ml powers of 1e)|[i«lation
confidvd to Guiig^ri'sii. A considt-nttion of tlM'niost important
subject will detain our attention for a_ considerable tinto; aa well
because of till- variety of to|>ies wliich it cmbrnoi-s, as of the con-
troverHtua and discussions to wbidi it has ^vcn rise. It has l>ccn
in the [Mat tjmo, it is in tlic prcacnt time, and it will probably in
all future time cuiitiuuc to be tho debatable ground of the Cun-
stitutiou, Higiialixed at once by the victoricjt and the defeats of th«
same partka. Here the advocates of State rights ond the fricnda
of the Union will meet in hoflUlo array. And here those who
have lost. power will maintain long and arduous strn^les to re-
gain tho public confidence, and those who have sueurcd power
will dispute every position whicli iiiny be assumed fur attack,
cither of their policy or their principles. Nor ou^it it at all to
surprise us if that which haa been true in tlie political history of
other nations sluUI be true in regard to our own : that the oppos*
ini; parties shall occaxioually ho found to maintain the same sya*
tem, when in power, which they have obstinately resisted when
out of power. Without supposing any insincerity or departure
from principle in such cosea, it will be easily imagined that a very
difTereiit course of reasoning will force itaelf on the minds of
those who are responsible for the measures of government, from
Ihiit which tho ardor of opposition and tho jealouBy of rivals
might well foeter in those who may desire to defeat what they
hMve no interest to approve.
^ !)04l. The first clause of tlio ei(;hth section is in the following
words : " llie Congress sluill have jwwer to lny and colleel taxes,
duties, imposts, and excises to pay the debts and provide for tbo
common defence and general welfare of tht; Unil.-fl States; but
all duties, iinpoela, and excises shall bo uniform throughout the
United Statea."
662
OP THK 0HIT1CD mA^Ei. [bOOK rlL
§ 907. Before proceeding to oon»id«r the nntiire an^ extent of
the power confvrriM] bj thu cl«ii»(!, and the reasoiiB on which tt is
founded, it Hccin^ ncccjisiiry to settle the grammatical constmc-
tioQ of the clause, and to ascertain tta true reading. Do the
trords, " to lay aod collect taxes, duties, imposta, and excises ,"
constitute a distinct substantial power; and the wordH, "to pay
Ihfl debts and provide for the common dt-fencc and general wcl-
fnre of the United States," constitute another distinct and sub-
stantial power f Or are the latter words connected with (be
former so as to constitute a qualificatjun upou them ! This lias
been a topic of |>olitical contruvcnty, and has furnished abundant
materials for popular declamation and alann. If the former lio
the true iiitvr[)retation, then it is obvious that under color of tlie
generality of the words, to " provide for the common defence and
general welfare," the government of the United States is, in real-
ity, a government of general and unlimited powers, notwitlistnn<l-
ing the subsC(]uent enumeration of specific powers; if the tatter
be the true coustruction, then the power of taxation only is iriven
by the clause, and it is limited to objects of a national character,
" to pay the lieljls and provide for the common defence and tbe
general welfare.*'
§ 908. l*hc former opinion has been maintain^ by some minds
of great ingenuity and liberality of views.' The latter has l>e(>n
the generally received sense of the nation, and seems auppnrlei)
by reasoning at onoc solid and impregnable. The reading^, tbet«-
> 8m 2 Elliut'i UvbMa^ SIT, 333. 8« DuiiAi App. f 41. p. 48 1 mr •lu> 1 ElUot'i
DeUtM. M : Id. 393 ; Id. 300 1 2 WiUoni Uw l^^n. 178, ISO. 1^1 ; 4 EUJM'i DelatM,,
S£l ; 9 U. S. Lav Joarnal, At«il, ISM, pp. SSI, SCI. 370 lo tfi. Tliii lut miA ,
latri* In p. STO tt wf . ■ vary (Itborai* cxionitloa uf the docvlM. Ut. JWTxnoa
Kpoa aB«n tiMa one aocwiiMi, iMialad tbat tbis wb th« r«dn«i ilcntrine, tliat «^ pH
ihietriiie iiuiaUiBnlIiTtb»lc<lanilMUMa fnj: aad that UNaUwrdootrii '' ..t
of Uu rtjiutilkaiu o) « ptrty. 4 JdTanntt't Cormqi. 3M. TbE tuatttian i
for tile Utlir Dpiiikiii iru condaatljr (ntint^ncd hv noiii* «f tlia tno«t xmncum f,ili.nl-
itt* Bt tbi tlma of lb* ulaiNliw «f iIm Ccuntthilion. uiil bM linn' Von mintuncd hj
ttnnf ot thorn. 2 KUiiA'it tMMf, 170, 183, IIiS ; t KUiol'« DctntM. tM ; ■£
liiiwiiM, 434 : 3 Amtr. Uuiwun. 338. It U niDufcabln that Ut. G(vr^ Mi.^no, na
o(i]i« muti itivi-lol oppoaMt* cj the CoMtitntiob In il><! Vit)^nia (ni '.a|
^uiaa thit tbn claiuiev t» pioviik F>r the eoamtm Aiimre tai i^^
■nbtUBtirc pown. lie uUod, " That Congnn Aould b*rg |<
pMnI wtlfara of Uio CnUat, I i[t*ttt. Bol 1 irtak > dMM is t
*pnt t« kU pow«r(, vliUh an licit cnuitcd, Ikit Ilit;- are nlunsil \jj t :
wtw, lUe po"-Tr <rf|ir«»ldl»^fi)ttlM(jtai.'nilwd£ir5iiia]rl)«ii«verlcdl. -^...»-
2 EUMt'a IMmUa, 327, 3U.
CH. Xir.)
roWK&S OF CUN<1RBSR — TAXES.
ees
[ore, which will bo maintained in theee oommeotarieB is tbftt
wbich makes the latter words a qualiGcatinii of the former ; and
this wilt be best illustrated by 8up)>lyiiig the wordii which arc ikc*
ce»aarilj' to be understood in this interpretation. Tbe^- will tbeo
stand thus: "The Congress shall have power to lav and ci>llt<«t
taxes, duties, imposts, and excises, in order to pay the debts, and
to provide fur Ibc common defooce and genera) wcUurc of the
United Stut4!)i;" that is, for the purpose of paj^iug the public
debtf), imd providing for the common defence and general welfare
of tbu United iituLes. In thiH seiuie, Congress has not an un-
limited power of taxation ; but it is limited to specific objects, —
tlie payment of the public debts, and providing for the common
dcfeui^ and general welfare. A tax, therefore, laid Uy Congress
for nuitlicr of these objects, would Iw imconslitutioual, us an ex-
cess of its legidatiro authority. In what manner this is to bo us-
Certained or decided will be considcn-d hereafter. At preacut tltc
interpretation of the words only is before us ; and the reasoning
hy which that already suggested has bc«n vindicated will now be
reviewed.
■§ 909. The Constitution was, from its very origin, contem-
plated to be the frame of a national government, of special and
enumerated powers, and not of general and unlimited powers.
Thiit ia apparent, as will be presently seen Iroui the hielor}' of the
proceedings of the convention which framed it ; and it has formed
tlic admitted t>a.His of all legislative and judicial reasoning upon
it ever since it was put into operation, by all who have been its
open friends and advocatos as well as by all who hare been its
enemies and opponents. If the clause, *'to pay the debts and
provide for tlie common defence and general welfare of the
United States," is construed to be an independent and aubstau-
tire grant of power, it n«t only renders wholly nnim|>ortant and
nnnecessary the subsequent enumcratiou of specilic powers, but it
plainly extends far beyond them and creates a general authority
in Cungresa to pass all laws which they may deem for t)io com-
mon defenw or general welfare.' Under such circnmstancea the
Constitution would practically create an unlimited national gov-
ernment. The enumerated powers would tend tu emlutrrassment
and confusion, since ttivy would only give rise to doubts as to the
true extent of the g^-neral power, or of the cnunioratM] |«ower8.
> rn*ld«til UoniM'* Ucm0^ *>^ ^r> 1SS% pp. $% 33.
664
COSSntCTIOS OP TBE DinTKD STATEa. [BOOK tit.
§ 910. One of the most oommoii maxims oi iiili^rpKtiitioa is
(as has been already stated), that, u8 on exception atrcngthuaii
the force of a law in caaes not cxccptod, so miuinuraliou wimIcviu
it in cases not cnumorntiid. But how could it be applied with
ancceaa to the iDtvrpretatiou of the Constiiiition of the United
States, if thp enumerated powera were neiUier exceptions fmm
nor additions to the general power to provide for the coniniou
defence and general welfare? To pve the, enumiimtjon of tbe
specific powvrs any sensible place or operation iii tlie ConatitO'
titiu, it is indispensable to constnie them an not wholly aud neeea-'
earily embraced in the general power. Tbe common principlefl of
interpretation would seem to instruct us that the different ports
of the same instrument ought to be no expounded aa to give
meanini^ to every part which will bear it Shall one jiart of the
same Etenteiice Ike excluded altogether from a share in the im^aninfr;
and ^all the more doubtful and indclinite terms lie rctaini-d in
their full extent, and the clear and precise exprcAuooa lie denied
any signification ? For what purpose could the enumeration of
particular powers be inserted, if these and all others were meant
to bo included in the preceding general power i XutJiing is
more natural or common than first to nse a general phrase, and
then to cjualify it by a recital of particulars. But the Idea of an
enumeration of particulara which neither explain nor (|ualify tbe
general meaning, and can have no other effect than to confound <
and mislead, b an absurdity which no one ought to charge on the
enlightened uulliors of tbe Constitution.' tt would be to charge
them oitjier with premeditated folly or premeditated fraud.
§ 911. On the other h»ii<I, construing this clause in connecUaD
with and im u ptirt uf the precetlin^ eliiuse giving the power to lay
taxca, it become* sensible and operative. It bouomes a qualifica-
tion of that claimc, uiid limits the taxing power to objects for the
common defence or gcncntl welfare. It then contains no grant
of any power whatsoc\-cr ; but it is a more expreaeiou of the oodii
and purposes lo lie effected by the preceding power of taxation.'
§ 912. An attempt has been sometimes made to tn^ut this
clause as distinct and independent, and yet as having no real slg-
> Tbe Fedeimlkt, No. 41.
* Sm Dcbftta on IIm Jndicury in 180% ^ S59 : Oibc'i App. f 41 .
nt't UwMg* on IbUtdiI ImiirovmaDM, ttb Hay, 1S2I, |>t>- 32, 33 .
App.331.
^I>>B■
CH. UV.]
P0WBB8 OP OOKOBRSB — TAZea.
6«S
nilicancy per te, bat (if it may be bo said} aa a mere prelude to
the succeeding enumoreted poweni. It is not improbable that
this mode of cxjilaiiatiun has bcvn saggcstcd bjr the fact, that in
thfl revJAMl draft of tttc Cuiuttitution in the cuavuntion the clause
was 8c{Kiirate<] from the [>rvcodiog exactly in the same manner ss
uvi^ry HuceMsdiug clause via, namely, by a semicolon, and a break
in the iwrograph ; nad tliat it now ittauds iu some copies, and it is
said that it sbmds in the of)iciaK.Gopy, witb a semicolon inter-
poaed.' Bui Uits circuniiilniici' will l(C found of vcrj' little weijfht,
when tJic origin of the claiiso and\it« progress lo its present stutc
are tracc^l in the ])roc9odiipgi in the convention. It will then ap-
pear that it was Grjtf introdncod as an appendage to the jrower lo
lay taxe^.' Itut there J« a fuudamcntai objection tx> iJm interpre-
tation thus attem)>ed to bo maintained, which is, thatVrobs Uie
clause of all efhcacy and meaning. No person has a right to aa>
fliime that any part of .the Constitution is uHeless, v ii* without a
meaning: uii a fortiori ao person has u right to ro^any fart of
a meaniug, natural und' Appropriate to the longuagcnn the con-
nection iu wliLch It stands.* Now, the words have such u natnral
and upprupriAte nltsaniag as a qualiGcalion of the procoding clause
to lay taxes. Why, Ihun. should such a meaning be rejected T
§ 913. It IS n6 sufTicioiit auHwer tu say that the clause ou^^ht to
be regarded merely as coritiiiuing " general terms cxpluini'd uud
limited by the subjoined specifications, and tliercforc requiring no
critical attention or studied precaution,"* because it is assuming
the very point in coutrON ersy to assert that the clause ts connoeted
with any subsequent spL-cificutions. It is not sud, to " provide
for the Common defence, and general welfare, ii» manner folloifin^,
!'(>.," which would be tlie natural eicpresston to indicate audi an
intention. But it stands entii-ely disconnected from every subse-
quent clatikc, both in s<-nse end punctuation, and is no more a
part of thorn tluut they arc of tlic power to Uy taxes. Besides,
> Journ. of ConnntlDD, p. SSA : iiL t»i ; S ITiiftod Suua Uai JMrMl, p. 2S4,
April, ISSS, K«> York. In Th* Ffilmlln. Xo. tl, Ui* dn:im«U»c« Uul it la »*f-
anuel tnm lb« mooeedbg rlttiM hj • wmkalm i* notbmi Tha prlnttj JonrHiI of
lb* OwMntkM fin* Um nriwl dnft from Mr. BrMrly'i (opr. w abova uatx). 8m
Jounul of Cannmiwa, pf>. 3S1, 3&S. Srt PnMmt Honrae'i Mnwp on Intcnud
iMpmnmcsti, 4Ui Uajr, 1S22, pfi. IS, 32, Ac.
* Jonra. uf Coiinntton, n^- ^tS- !<2^ >!"•
* l>n«i>kat UontM'a MtMjn. (tU 11*^, IiaS, Rk S% U.
* Fn(u)«t MmIwoq'* Ij«IM lo 3Ir. SlvrawM, 37 H«r. I8W.
666
COKSTITDTION OP TOE OKITKD OTATES. [BOOK lH.
whut suitable fipplication, iu sucli « wnse, would Uicrc be of tbo
laat claiisv in tbo enumeration, fix,, the cluuse " to nnkc all laws
neoeesaiy and proper for carrying ihto execution tin- forogoiog
powers, *«."? Surely, this cluuac ia as applicable to tttc [iuhlt
to lay taxea ao to any other, aud iu> one would dream of ita being
a mere specification undur the power to provide for Uie ooaimom
defence and gt-ncral wolfore.
§ 914. It has bL-cn said, in support of tJiis constructioo, that
in the articles of couk-dfration (art. 8) it \g provided, Iliikt "all
charges of war, and all other cx))cn«c8 that ahali he incurred for
(he common defence or general welfare, and allowed by tfa«
United States in Congrc»s nssembled, shall \>c defrayed ont of the
common trcnsiiry, ire.;" and that "the similarity in the use of
these »iiuic phrases in those two great federal charters may well
be considcretl as rendering their meAuing less liable to iniscon-
stniction; because ic will scarcely ho said that in the former^
they were ever understood to bo either a general grant or power,
or to aiithorixie the requisition or application of money by tho
old Oongrras to tho conimon defence aod [or] ' genera) welfonv^
except in the cn^tos afterwards enumerated, which explained
limited their meaning; and if such was the limited meaning at-
tached to these phrases in tho very instniioent rerisod and re-
modelled by the present Constitution, it can never be 8up)k«mI
that when cojiied into this Constitution a different moaning
ought to be attached to Ihpm."' Without stopptn? to cuididcr
whether the Constitution can in any just and critical sense be
deemed a revision and remodelling of the confederatinn,^ if the
argument here ufatcd be of any %-alue it plainly establicilioa that
the words ought to be conatnied as a (|ualifiratioR or limitation'
of the power to lay taxeo. Br the conMeratioo, all exitensea
incurred for the common defence or fieneral rolfarc an' to be ie-
frajcd out of A common treasury, to be supfdicd by roquinitiiuiSj
upon the (States. ImitcAd of requisitions, tliu Cunstituliim give
the right to the national goi-eniment directly to hiy tuxes. So
tliat tJie only difference in tliis view between the two elntm-s ia,
as to the mode of obtaining the money, not as to the objects or
> •• Or' tothavonl In Uw article.
* Virgutim BqKVt and RMalnlioM of 7 Juituijr, WO. 8m abo Ilia Fwltnlat,
Ho. 41.
■ Sm Tbs Fodmlirt, Ko. 40.
CB. MV.]
POVBnS OF O0KQBE8S — TAXB9.
667
pnrpoma to which it is to he applied. If, then, this Constitution
vere to be coriBtraod according to the tru« bearing of tliia Mrga-
mont, it wonld read thua : Congrt^ss ahall hare power to lay taxvt;
fur "all diar|?E« of war, and all other expctinrs tliat shall be
incurred for the comtaon defence or ireneral welfare." Tiifs
(■lainly makra it a ■{ualification of th« taxinii; power, and iiot an
iiidi-|>tndent proWsiun or a funeral index to the eiiiccoodin^ spe-
ciriciitiona of power. There Ib not, however, any aoUd ground
upon which it can be for a momont maintainiKl that the language
of the Constitution is to be enlar^r^d or restricted by tlic lunpiage
of thu oonfi-ilvnitiuut That would be to make it SjM'^uk whut its
wortU do not ttqAm and it« objects do not justify. It would be
to ap|ieiid il^w^Qwdicil to on instniinent which it was dvsigDcd
wholly to^w^enede and vacate
§ 015. Jlut the ailment in it* other branch r«sls on an as-
sumed hpin which io not admitted. It suppose!) that in tlip con*
f(>deri^jon no expenses not strictly incurred under soinn of the
flube«<)ucnt apecilicd powers given to the continental Congress
could be pro]»crIy payable out of the common treajiury. Now,
that ia a propiutition to be proved, and is not to be taken for
granted. Tho confederation was not finally ratified ao as to be-
come a hindintr instrument on any of tbe .Statm until March,
1781. Until that period there could be no practice or construc-
tion under it; and it is not shown that subsequently there was
any exp4)sition to the effect now insisted on. Indued, after the
peace of 17S3, if there had boon any such exposition, and it had
liecn unfavomblo to the broad exercise of the power, it would
have been cntilted to less weight than usually belongs to the
proccettin)^ of public butlica in the administration of their pow-
ers; since the decline and fall of the confederation wore so obvi-
ous that it was of little inc to exert tliem. The States notoriously
disregarded the rights and prcronntivns admitted to l>clong to the
confederacy, and even the requisitious of Congress for objects
moat unquestionably witliin their constitutional authority were
openly denied or silently crnded. Under such circumstancos
Coiigrcaa would liave little inclination to look closely to their
powers, sinee^ whether great or small, large or narrow, thoy
were of little praelical value and of no practical eojpL'Ucy.
§ i)lG. But it docs so happen, tliat, in |>oint of fact, no such
unfavorable or restrictive interpretation or practice wu» ever
668
coKsmimoK of tub tnoTBD statka. [book iu.
adopted bj the ooatinental CongrcM. On the contrary, thej
construed their power on the eubjcct of requisitions and taxation
exactly us it ia now cont£nd<.Mi for, as a power to make requisitioiM
on the States for all cxptiuKOs which they might deem proper to
incur for the common defence and general welfare; and to ap-
pro])riate all monoys iu the treasary to tJie like purpoeca This
is admitted to be of »iich notoriety as to require no proof.'
Surely, the practice of tliat hody in qoestiona of thia nature must
bfi of far hiffht-r value than the mere private interprctalinu of any
persons in the prouvut times, however respectable. Hut the prac-
tice WB8 conformable to the consitutional aatJutritv of CongreiM
under the confederation. The ninth article expressly ddepitea
to Congreiui the power "to ascertain tlie necessary sums to be
raisvd for the service of the United States, and to appropriate
and |ap]>ly the same for defraying the public expenses;" and
theu provides that Congress sliall not "ascertain the sums and
expenses necessary for thu drftme€ and vtlfare of the United
States, or any of thevi, Ac, uulcss nine States assent to the
> ill. UaiUniii kbiMK in hi* htttr to Mr, StcTcnMm, Not. 37, 1S30, hIiiijU lh«
torcA oT ihawt rcmarkn tn thvii (uti viUnL Hit Ikngtugr It, " If iha [mrtjoe «f Uw
icTDlatioDaijr Congran be pimkil in oppoaitioD to tLj* view or ibo caM** (I. •■ U(
view, Uut Um wonla have no diiUoet mmning}, " tlw pita fa nut by th« notoflBtf; .
ikkt, on MTaml taxntnU, ibo [aactic« gt tbM body U not ik* cxp«mlor or Ui* ,
of tti« CVinMoraUoii. Tfata* uIIcIm «mv oM ia (om onUl tbey wen fltully rmU'fied by
MatxluuL In 1781. Prior W tb>t event, tbt ptwtr ct CangroM um niMnirKl l>; tlw '
fxiganciH of the w: mi dtnnd ita MBCtiaii fte«n ih* ■ci|vl>*n>n('» uf lb« HialM,
After that crcnt. bafait, and ■ ooutinuod ei|iMU«Dty, •moanling ofltn to a imI of m
*)ipuvnt MOtHlly. iiro1aa(Ml Iho ewrelM of W ua<]c6Btd aatlioril;, ohich •« tb«
mote rradil; oterkokid, m the tnumUn of that body b*ld tluir waU •Inrin,; i^l'-^uart;
M ila act*, jwticniarljr aRer the failiin' of tlie biUt at crntil, J*iir«iil> j rfl-
<M!y OB the will of tlw Btato^ and m iu gmml impolMiFv bMsunv ' A»-
amptea of dtfiBiurtfnm tht pnttHitd raU art too bkU hr-nm la n^uirt pmu/." So
that it ii admittod, that the pntdlM nnd«r tlir confMlnatic*! ava DoUniouiilf each aa
alloved approprlatlDna by Congna toir tmj oIiJctIb whkh Khej detwod (ot lb* oooiBioa
deboco and Kt««nl wd&ir. And yet we an now caDnf apan Vt uln a nnw *a4
MOdsn itloM of tbat initnimMt, dliactly at variance >ilh that loaclie*. Sm abi
Ut. Wilaas'a pamphlet on tka Con^tilutloBillty ^ lb* Bank of Nortb AniTrica. in
ITSS. Thenueti why bedomnotallaiUlo the t«nua*'<MBiDMidf<(w« and (rawnl
wcltaiv," in that arpistnt, pnbiUy wav that there waa do qnwti.
prtatiana of money IsTolvrd b that diwuauoiL 11* ttreDnoMly
KiTM Iml a rigkt t« charter tha baak ; asd be aJludei to tb* UH. *i
■lie conrrcient iMiiafirniewt of the fmur»l fataiMt at the [TDUnd -s
for the ^ipoititatMit of delegate Ana tlin .Statm. Ho d«dae*« titc i iia
bttng eaxtitklly taHanal, a»d vitaltj iapottaat lo tb« goTtmntnl. 's l^w
LccLa&r.
CH. XIV.]
F0WKB8 OP CON'GRESS — TAXES.
669
name." So Uint here vc havo, in the eighth article, a dcclari-
tioD that "all chaises of war and all other «spcn«e« that «bttll
be incurred for the common dfffnce or general welfare, A'C, 8ha1l
be defrayed out of a common trcaaur; ; " and in the ninth article
tui vsprctM powtir to ascertain the ncocssary sums nf money to be
ratit«d for tbv public service, and then tliat the neceaaari' siinis
f»r the defence and welfare of the Dnited States (and not of the
L''nit4Ml States ulune, (or the words are added), or of ang of (A«m,
ahail be oitcerlainod by tho luutcnt of nine States. Clearly,
therefore, upon the plain Icin^&fre of tlic articles, the worcUi
"common defence and frvncrsl welfare" in one, and "defence
and welfare" in another, and "public servioo" in another, wore
not idle words, but wore desoriptirc of the very intent and ob-
ject* of the power, and not confined even to tlie defence and wel-
&re of all the States, but oxtendinK to the welfare and defence of
any of them. ' l*he power then is, in thia ricvr, creii lai^r than
that conferred by the Constitution.
§ 917. But there is no ground vhatsocver which authorizes
any resort to the confederatinn, to interpret the jwwer of taxa-
tion which is conferred on Congress by the Constitntion. The
cluiuic hat 00 refercnco whatsoever to tho coufcdenttion, nor in-
deed to any otiier clause of the Constitution. It is, on its face, a
distinct, substantive, and independent power. Who, then, is at
liljerty to say that it is to be limited by other clausea, rather than
tlioy to bo enlarged by it; since there ia no avowed conncetion
or reference from tho one to the others ? Interpretation would
here desert its proper office, that which retjuires that "ewry part
of tlie expresition ought, if ixusible, to lie allowed some meaning,
and be made to conspire to some common end."*
I 918. It haa lieen further said, in supiwrt of the construction
now under consideration, that " whether Uie phrase* in qitcstion
are construed to authorize every measure relating to tho oommon
defence and general welfare, as contended by some, or every
> * EUinf« IVK 195.
* Tlw FtdcnUkt, Ko. M la tb* fint dnft, of Dr. Fnnklb, In 1775; Um cImw
WH M fclknn : "All c^rgn at tmn, •nil all olbcr pnanl MpantM la b* iaeumd
for th* MmmoB i>*UuN AtU Im dt/nyrd," *«■ In Mr. Diekiuaoo'i dnft, in Jnlj,
1T7S, tb* HMJi wtN. " All charSM of <Mia, mil all oOut rapnuM ihat tlnll bo
iMennod tat th* eooMiMa iMrni* ct gmcnl wtlbm," te. ; ud thoM ward« won lutf
iniamtlr i«uin«d. 1 Becrrt Jav. of Ongnm {pcfntad In 1831). ff, m, IM, UT,
8S9 Ui SSfi, Ul.
«70
CONSnXCTIOS OP TUB OmTKD STATES. [BOOB lU.
measure only in which there mi(;ht bo »a application of money,
aa Buggcsttid bj^ tiic caution of others, the I'fTcct must eulxstun-
tially be the sumv, io dcBtroyin); the import itnil force of Ihe |)3r-j
ticular OQUtncrutiuii uf puw«rs which follow Uiesc general pfc
in the CuuBtitutioa. Fur it ia evident Uiat Uiere is not * ftingle
power whatsoever which may not have some reference to iJie amf^
moil defence or the general welfare ; nor a power of uiy lua^oi'f
tilde, which, in its exercise, does not involve or admit an
ftppltcatioQ of money. I'iie jjovcrament, therefore, which pa»^
tOSMS power in citiior one or the other of tlii-tie extents, is a gov
cmment without liroilationii, formed by a particuhir enumenttiuo
of powem; and, coiute'iiiontly, the meaning and eflM^t of thia
particular enumeration are detttroyed by the exposition given td^
iheiK general phrancfl." The concluBion deduced from thvsu
premises is, that, under the confederation and the Cuustihition,:
" Congress is authorized to provide money (or tlie common du-l
fence and general welfare. In both is inibjoincd to this authority
ftn enumeration of the cases to which their powers sttiill uxteiKL.
Money cannot t>o applied to the general wclfun;, otlierwisc thu
hy an application of it to some particular measure, condnciTv to
Iho funeral welfare. Whenever, thenrfore, money ba«
raised by the general authority, and is to be applied to a partim
Ur measure, a quivtion arises, whether tlie |tarticuUr mf
he within the enumerated authorities vested in the Congress. If
it be, the money requisite for it may be applied to it; if it bo
not, no such application can be made. Thin fair and obvioits in-
terpretation coincides witik, and is enforced by, the clauMi in the
Constitution, which declares that no money shall he tiniwn (roiD
tiiu treasury but in consequence of apprupriution» by law. Au
appropriation of money to the ^oneral weUaro would be ducmed
rather a mockery than on ohsorraace uf this constitutional iu-
jnnction. " •
§ 9iy. Strijiped of the ingenious texture by which this argu-
ment is disgniaed, it, \» neillier more nor less tlian an nlU-mpt {<t
obliterate from the Coiiittil^ition tiie whole claus*, ""lo \>ay the
debts, and provide for tlie common defence and general welfare
of the United States," as entirely senselesA, or inexpressive of
' Vtqilah IL«MlMioM tt 8th Jwriuiry, ISOO. The Maa« KMoniiiit ii in IVeniUat
MadiMB-* vbU m«i(p. of U ol U uch, I81T. i EUiM'i D«h. SSO, 3SI.
CH. XIT.]
OF ayKOBXSi^TAXBi.
671
(my intention whatwerep.' Strike them out, and the Conatitn-
tion i» t>xactl)- what tlie argument contends for. It is, there-
fore, an ar^ini>nt that the words ought not to he in the Connti-
tution; IxwaiiHe if thej* are, and have any nteaninii, they enlarge
it tierond the Hcope of certain other ennmcmtvd pun-crs, and this
ia hoth misehioTous and dangerotu. Bcin)! in the Constitution,
they »pc to be deemed ror *( preterea nihil, an empty sound and
vain phrascolofiT, a finger-hoard pointing to other jiowcr*, but
hanng no use whutiweTOr sinoc thciM! powers arc sufficientlr ap-
parent without.' Now, it is not too much to sny. that in a con-
etilutiou of governnieut, frHmed and adopted by the |>ovple, it is
a most uuJMetifiablc latitude of interf>rotAtloR tt> deny effect to
any clause, if il is sensible in the language in which it is ex-
prcMcd, and in the place in which it 8tiind». If words are in-
serted, we arc Imund to presame that they have some definite
object and intent; and to reason them out of the OonRlitntion
\i\xm arguments ab inconitnienti (whieh to one mind may ap>
penr wholly unfounded, and to another wholly satisfactory), is to
make a new constitittion, not to construe the n)d one. It is to
do the very thing which is so often complained ot, to make a
constitution to suit our own notions and wishes, and not to ad-
minister or construe that which the people have given to the
country.
§ 920. Ttut what is the argument, when it is thorooghly
sifted t It reasons ujion a supjHtscd dilemma, njom which It sus-
pends the advocates of the two contrasted opinions. H the
power to provide for the common defence and general n-elfarc is
an in(Iei)endent power, then it is said that tlie go»omment is un-
limited, and the subsequent enumeration of powers '\i unnecessary
and useless. If it is a mere sppL-ndngc or ipialification ot the
power to lay taxes, still it involves a power of general a[»i)ropri>
atinn of the moneys so raised, which indirectly produces the
same result.' Now, the former position may be safely admitted
to be true by those who do not deem it an independent power;
* t EUiot* Dtb S38.
« la * Ddata o( Ttli of Pabnurr. im (4 EllleCi IMl SW), Ur. Mdiiwa r«t*
dnn fnanirMUy M hX* Mra maitraetion) "m ■ tort «r Mptkm, of pntnl <l«wti|>-
tlon td lb* ii[i«tlflr<l powtn^ »»A m liiTiiig au farlher moMiing. uiil gi*i^ d» luntwr
\«mtn, (ku *\al u bnnJ in Uut ■pociflotJon." Sx «W Mr. Hadiun'i T«la om^
mg\ m tW Bask Boniu Bill. Sd Hanib, 1817. 4 ElUot'i D<U 2S0, 2S1.
• 1 EDiM'a D«t>. 2S0, !HJ.
672
C0S8TITCT1ON OF TOB DSITH) 8TA«S. [BOOK HI.
but the I&ttcr positiou is not a just concltmion from the pivniiscs,^
which it aUitvs, thut it i» a qunlified power. It is not a logical
or a practical seqncneo from Iho piviiiisv»: it is a non te^ttihir.
§931. A dilemma, of a wn- dilTorent iwrt, mi^ht lie fatrlj
put to tlioM who contend for the doctrine, that the w-orda aru not
a <)ualilication of the [lOwer to lay Uix<^a, and, indeed, have no
nHmniMg or u»e per ne. The words arc found in the claniie re-
apecting taxation, and as a part of that clauae. H the powor to
tax extcndn fliniply to the payment of the dehtR of the Unitnl
States, then Congress haa no power to lay any taxes for an/ other
purpose. If ao, then Congress could not appropriate the money
raised to any other purposes; since the restriction is to taxes for
payment of the dehts of the United States, that is, of the dehta
then eziating. This would he alnitmt aluiurd. If, on tJie other
hand. Congress have a right to lay taxes and appropriate the
money to any other objects, it must be because the wonis, ** to
provide for the common defence and gottera) welfare," authoriu
it, by enlar^Df; the {lower to those objects; fur there are no other
words whioh belong to the clause. All the powers are in distinct
clauflOA, and do not touch taxatiMt. Xo advocate for the doc*^
trine of a restrictive power wilt contend, that the (tower to \%y
taxes to pay dfhl» authorizM the payment of all dobts which tba;
United States may choose to incur, whifther for national or con- ,
stitutiunal objects, or not Tb« words, "to pay dcbta," are
therefore either antovedent debts, or debts to be incurred "for
the common defence and general welfare," which will justify
Congress iu incurring any delfts for such purposea Bat the lan>
guage is nut confmed to the payment of debts for the ciimmoa^
defence and general welfare. It is not "to i»ay the debts "
merely, but " to provide for tlie COtnmoo defence and general
welfare." That is, Congress may lay taxes to provide means for
the common defence and general welfare. i>o that there is a
difficulty in rejecting one part of the qualifying clausu withoitt
rcjcctinff the whoie^ or enlarging the words for some purpoacs
and restricting them for others.
§ 922. A pon'er to lay taxes for any purpome whataoerer la a
general power; a power to lay taxes for eertain siierified pur-
pose* is a limited power. A power to lay taxes for the common
defence and general welfare of the United Stales is not in com-
mon senae a general power. It in limited (o those objecta. It
CQ. XJT.I POWBBS OP OOKflnBSB — TAXES. 678
cannot eorwttiutioitally fran^ccira^heinr It tm^ defence proposed
by ft tax be not the ooronion defenceVn the Unif^i •Sldti.'s, if tlie
welfare be not general, but npecial, or local, as coutradUtin-
^isbed from national, it is not within the scojk! of the Con«t(tu-
tion. If the tax be not propoBed for the common defence, or
{general welfare, but for other objocta, whoUj extrancouA (ag,
for instanre, for propajratinK Mabomi-tonisni among the I'urks,
or ^iviutr aida and subsidica to a foreign nation, to build {Mtlaccs
for its kings, or erect monumenbi to its heroes), it would bo
wholly iDdcfensible upon constitutional principles. The power,
tJien, is, onder such ci rcmustanccs, necessarily a quulitied jHiwer.
U it is 80, liow then does it affoct or ia Um slightest degreo
trcncli uiK>n the other enumerated powers 1 No ouc will pretend
that till- )>uwi;r to lay taxes would, in general, have supcraoded
or t«ad«rud tuuioocssarj all Uto otlicr enumerated powers. It
would neither enlarge nor qualify them. A pijwer to tax does
not include tht-iiL Nor would they (as uiihai>pily the cunfedera-
tlou too clearly demonstrated),' necessarily include a power to
tax. Each has its appropriate of&ix and objects; each may ex-
ist witlioiit necessarily interfering with or annihilating the otlicr.
No one will pretend that the power to lay a tax necessarily in-
cludes the power to declare war, to p«sa naturalization and bank-
rupt laws, to coin money, to establish post-oflices, or to defius
pirteicfl sod felonies on tLe high seas. Nor would either o(
these be deemed necessarily to include the power to tax. It might
be convenient ; but it would not be alisolutcly. indispensable.
§ 923. The whole of the e1a)>orate reasoning upon the propri-
ety of grantinti llie power of taxation, pressed with so much abiU
ity and eamealness, Iioth in and out of the eunveutioo,* as vital to
tliB operations of the national goTemmvut, would have lieen use-
lees, and almost absurd, if the power was included ill the sohse-
qnently enumerated powers. If the power of taxing was to be
granted, why shuuld it not be qualified accurding to the inten-
tion of the framers of the Constitution? But then, it is said, if
Congress may lay taxes for the common defence and general vrel-
fai^ the money maybe appropriated for Uni^e |>ur)ioiM:s(, although
not within the scope of the other enumerated powers- Certainly,
It may be so appropriated ; for if ('ougress is authorized to lay
> !lf« Th<! rKl«niliit, Not. SI. S3. 80 : 1 BUiot'i DiUlw, >18.
* 8m The redcnUrt, N<«. SO to S7.
674
COKSTITUnOS OP THE DNITED 0TATGK. [BOOK tBi
t»xe8 for Ruoh purpoAra, it would be strange, if, when ntiaed,
the money could not be applied to tliem. That would be to give
a powor for a certain end, and th<>n deny tlie end intended by tb«
p«w«r. It ift added, "that there is not a tiingle powor whatito-
ever, which may nut have some rcfcrt^nce to the oommon dufeuct;
or general welfare; nor a power of any magnitude, which, iu its
exercinc, docs not involve or admit an application of money, "j
If by the formor Ittnguagc is meant that there 18 not any |Miwc
belonging or incident to ouy government which has not »omc ref-
orcncu to thf cunimon defence or general w<'Ifare, the proposition
may bi; pcrcinplorily denied. Many goTernnient* pomess pi*w-
era which Imve no application to either of these objects in a ju»t
een^c; and some pu88v«a powers repugnant to Imth. If it
meant that there i« no power belonging or incident to a good gov^^
emment, and especially to a republican goremmcuts which may
not have some reference to those objects, that proposition may or
may not be tmc : but it has nothing to do with the present in-
quiry. The only question is, whether a mere power to lay taxes,
and approjirialc money for tho «)mmon defence and i^neml wel-
hrt, dooK include all Uio other powers of goveruraeut; or pt"en
docs include tlie other enumerated powers {limited a^i they are)
of the uationnl government. No person can answer in the affina-
tttive to cither part of the inquiry who haa fully connidercd
subject. The power of taxation ia but one of a multitude
fMwers belonging to governments; to the State gorenunenta as
well OM tlie national goremmcnt. Would a power to tax author-
ize a State govennnent to regulate tho descent and diatributiuo
of estates; to prescribe the form of conveyances; (o estahltah
courla of justice for general purposes; to legislate res}wctiugi
personal rights, or the general dominion of property; or to
ish all offences against society ? Would it confide to Cougrew
the power to jrrant patent rights for invention; to prorido fo
counterfeiting tbe public wcuritics and coin; to constttui*- judi-
cial tribunal:i with the powers confided by the tliird article of
the Constitution; to detilare war, and raise armii^s and nnrivatf
and make regulations for their govcminent ; to exercise exclit
sire legislation in tbe territories of the Unit«d States, or in otJier
ceded places; or to make all laws neccssari' and prfifxtr U\ ivtrr
into effect all tho powers giren by the Constitution ! The tJon-1
stitution ttiiclf upon ita face refutes any such notion. It gives
CH. XIV.]
POWERS or COKflRBSS — TAXB.
«T6
th« power to tax, as a nulntantivn power; and givee others u
«i{ually substantive lUtd indcitendGiiL
§ 924. That the same moans m&y sometimea or oftea be re-
sorted to^ to cttrrr into effect tlic dififercnt powem, furnishes no
objection; for that ia common tu all ^vernmvula. That on ap-
propriation of munc}- mil}' be the iwual or best mode of carrying
into effect sunie uf tliMb iiowers, furnishes nu ol>jcclion: for it is
one uf tile pur]KM(ii for wtiich lite nrjrunient iUelf admits t)mt
the power of taxation is girco. That it is indisiiensable fur tbe
due exerciso of all Iho powi-rM may admit uf some doubt. Tbe
onljr real question is, whether, even admitting; tbe jwwer to la;
taxes is appropriate for some of tbe purposes of other cnumor-
uted puweni (for no one wtU contend tbut it will, of itself, reach
or provide fur them all), it \» limited tu siidi upprnprintiunM as
frruw out of tbe exercise of those powers. In other words, whether
it is an incident to those powers, or n substantive power in other
cuses, which may concern the common defence and the general
welfare. If there are no other cafteB which concern the common
defonoc and general welfare, except Diose within tho scope of the
other enumerated powers, the discussion is merely nominal and
frivolous. If there are such casea, who is at litierty to say that,
being for the common defence and general welfare, the Constitu*
tion did not intend to embrace them ? The preamble of the Con*
stitution declares one of the objects to bo, to provide for the
common defence and to promote the ^neral welfare ; and if the
power to Inr taxes is in express termii piven to provide for the
common deleneo and general welfare, what ground can there be
to construe the power short of the object, — to suy that it shall
I>e merely auxiliary to other enumerated poweis, and not coex-
tensive with its own terms and its avowed objects? One of the
best cstablislted rales of inier|)retation, one which cominon-scDse
and reiiaou forbid us to overlook, is, lliat wlien the obji-ct. of a
power is clearly defined by its terms, or avoweil in tlic contest,
It ought to be oonstnied so as to oMain the object, and not to do-
feat it. Tlio circumstance that, so oonstrvcl, the power may be
abused, ia no answer. Alt powers may be abused; b<it ore the,r
then to bo abridged by those who are to administer them, or de-
nied to have any operation ? H the people frame a constitnli<in,
the ruleni are to obey it Neither rulers nor any other function-
aries, much less any private iiersons, hare a right to cripple it,
676
coK8Tmraos of toe ositko states. [book nL
becaiuo it Ib, uccordiug to Uieir oven views, incoavcnicnt or dao-
t^crouK, unwise or impolitic, of narrow limits or of wide influcocc.
§ 925. Be«idc8, tlic argument itself admittt, tbat " Congress is
uutliorizcd to provide uionej' for the common <lcfence &nA geoeml
welfare." It is not pretended that, when the tax is laid, the
q>cci(ic objects for which it is laid are to be Apecifiod, or that
is to be solely applied to tliose objects. That would \k to
a limitation nowbcrc stated in the text But it is said, that it
mu»t be applied to the frciKTal welfare; and that can only liO lij
an applic'iitiuu of it tu huiuu pardeular meaturt cooducive to tt
generul welfai-e. Tliix is admitted. But then, it is added, that
tJiis particular measure must be within tlie rnumerate<t authnri.^
ties vcst«d in Congress (that is, within some of the powers nc
embraced in the fir^it clauseX otherwise the application Is not
authorised. ' Why not, since it is for the general welfare ? No
reason is assigned, eicccpt that, not being within the scope i^
thoAo enumerated poweri«, it is not given by the Constitution.
Now, the premises may be true, hot the conelimion diiea not fol
low, unless the words comm<m defence and gemral warfare an'*
limited to the speciltcations included in those powers. So that,
aft«r all, wo are ted back to tlie some reastHting, which con-
struoa the words as having no meaning ptr te, but as dopeodent j
upon, and an exponent of, the enumerated jiowers. Now, thii
conclusion is not justiliod by the natural connection or colloca>
ti(Hi of the words; and it strips them of all reasonable force and
efficacy. And yet we are told that '*this fair and obvioiui inter*'
prctatton coincides with, and is enforced by, the clause of the
Constitution which provides that no money »hall be drawn from
tiie treasury, but in consequence of appropriations by law;" as
if the clause did not equally apply, as a restraint upon drawing
money, whichever construction is adopted. Suppose Congress.
to possess the most imlimited power to appropriate money for the i
general welfare, would it not be still true that it conld not be
drawn from the treasury, tmtil an appropriation was made by
some law passed by Congress f This lust clause is u limitation,
not upon the powers of Congross, but npon Uio acts of the oxocn-
live, and other public officers, in regard to tlie public moneys in
the treasury.
926. The argument in favor of the construction which
> Sm alM 4 BUM'S D«b<a^ 380, 2SL
ca. ht.]
^Mti
OP ooNoiuGss— Tins.
677
the clause as a C|Qali fixation of the power to lay taxes, has, per-
ha|iA, ntvcr h<hMi preaented in a more conciae or forcible aliapo
than in an oStcial opinion deliberately given by one of our uioiet
difltiii^iisliL>d statranienJ "To lay taxes to provide for the gen-
rai wflfure of thf Uiiit«d States is," says he, "to lay taxes for
the purpoif of providing for tbw gwieral welfare. For the laying
of taxes {g the power^ and the general welfare the purpote, for
which the power is to \»! escreisod. Congrues aru nut to lay
taxes ad libitum, for any purpose they pleiuc ; but only to pay
the debts, or provide for the welfare of the Union. In like man-
ner they are not to du anytliing they please to provide for the
general welfare, but only to lay taxea for tliat purpose To con-
sider the latter plinwe not as describing the purpose of the firat,
but as giving a diittinrt and independent power to do any act
they please which might be for the good of the Union, would
render all the precedino; and aubfiequcnt enumerations of power
completely useless. It would reduce the whole imitrunient to a
single phrase, that of inatituting a congress with power to do
whatever would bo for the good of the United States; and, as
they would be the sole judges of the good or evil, it would alao
be a power to do whatever evil they pleased. It ia an estabiished
nile of construction, where a phraae will hear either of two mean-
ings, to give that which will allow sonic meaning to the otlier
parts of the instrument, and not that which will render all the
others useless. Certainly, no such universal power waa meant
to be given them. It was intended to laco them up strictly
within the enumerated powers, and those withmit which, as
means, those irawera could not be carried into effect " *
§ 927. The same opinion has been malulained at different and
distant timea by many emiueut statesmen.' It was avowed and
' Ur. JtSatcm.
* Jcftnm'* opbilM) en tlw Buik of Jii United SMm^ 19th P«brav7. ini ; 4
Jdhrwii'i CormpooilMin, SM. 51S. T) ui o[riiiliHi wm <idi1i«nlBlr mmutei bj Mr.
JelTenon an other wcuionk, Tltn n»T, prrb*))*, hIiki t» teani inttn it *n opinion
itfll VNTo rortriotln In bU Uter vrtticgi ; bat Uiey ■» very obKsn ftn<l vnnihfoc-
lorr. Bmi3*lbruM'*CommpaaAr»f..3ll«,tlt,ti7: HcoMp of PraiUiait JfflMOoa.
Ell DtmnlMr, 18M i G Vtlt'iSute ^H^ 469. US, 409.
■ It wwi ottinuiBMl tiy Mr. Ilimll on, Is til* Tnuary Report on Muinfamn* (&lh
J*f. lTfl\ ukI in hit argamoDl oi tb* oonrtlutloMlitr of ■ Xmiinaid Bo&k, :>4
F«b. I7>1. yp. W, lU ; bjr Mr, Gnrrj in Uh MmU <m Ihp Kxlonat Bonk In F'h.
1TBI. i RIliM'i Drbatoo, 8M ; bj Ur. EUoirorll! in ■ ipiwh in 1TS8, S Auioricn
MuMnn, S88; oad bj Pmidnt Uoora in bU Uern*^ of Um 4Ui <« May. ISO,
6T8
CONSriTDtlON OP THE WSI
[BOOK in.
apparently ac(iui«8«cd in, In the stated conventions called to
ratify the Constitution;' aiid it has been, on mrious occasiuiu,
adopted hy Cungrctu),' uid may fairly be deemed that which tho
deliberate aen»e of a majority of the nation has at all linien sup-
ported. This, too, aeeins to be the construction maintained by
the Supreme Court of the United Htatca. In the case of Gibbons
V. Ogden,* Mr. Chief Justice Marshall, in delircring the opiniun
of the court, »aid, "ConKfcsa is authorized to lay and collect
taxes, ct«., to pay the dcbta and provide for the common defence
and general welfare of the United Stated. This docs not inter-
fere with the power uf the States to tux for the aiip|K)rt of their
own governments; nor la the exercise of that power by the State*
an exercise of any portion of the power tJiat is granted to the
United States. In imposing taxea for State puriiOMea thoy aru
not doing what CongrcM i» empowered to do. Congress ia m*
empowered to tax fur thotic purjKMcs which are within the exclu-
sive provinc*! of llie Stalv*. When, then, each govenimeut la
exercising the power of taxatiou, neither is exercising Uie power
of the other." Under such circtmistnuces it ia not, perhaps, too
nnich to contend that it iii the truest, the safest, and the most
authoritative construction of the ConstitutioiL*
§ 'J'2S. The view thus taken uf this clause of the Canatitation
will receive some confirmation (if it aliouM be thought by any
person necessary) by an historical examination of the proceed-
ings of the Gonreotion. The first resolution adopted by tlie ood-
{pp. SS to S9). in ui cUbotato umttnicttt whidi w«l] i»Mm» to In sluilj*! Ua eon-
Uuda, ttuit lb* fncn to Uy Uira U <»nfiii«d to {nu^ows fn tbn commw ilcfaiM huI
gpODTil vcUu*. And that the |<ow«r ol nfiiiropTutipn cf tbt mumey U totacteadn^
llut U, that it our be apptinl to tnj putpeoea of tbo OMntwn AntntuK ar (guncrd
valOrr. Mr. Aduox in hi* l^ttrt to Mr. Spnlcer StovmMM, lltb of July, IBSX
publbbBd line* the prDptratioii of th«<« ComatratMiaik bn gltni • nMlntj eX|i»-
rition et th« r^nir, to vhkb <t nwy bo tmpoflitat litrtarin- igun to rear.
I 9 Klliot'* DaUl». 170. I$J. 1». S2S. S14 ; S Klliol-* Dctalci^ S<t3 ; 3 AmrIcu
HatMin. «3I ; 1 Elliot'. DebaMi. 31 1 i Id SI . S3 ; S Klltot'f Dthilv. aS2, SM ; S
Ameriinn Mtumm. H4.
' S« (MM nfemd to in Pmildaat Maam't Hb*m^ 4th el U»j, ItlS g 1 lUcit'a
CotBin. leeL pp. ISO, 2S1 ; 4 Klliot's Dvb. 3SS. SI3. SU. 370 to S^S j liL »1, Ut i j
S rnit«d SlalM L»w Jourti«l, Agiril ISSS. pp. 903 to 2S0 ; WrtMlar'i SptwU*, U» U '
MI, 111, 119, *•».
> » Wb«L R. 1. IM.
• I Kant'* Comm. Lcct p. 2S1 ; 6arg«>iit oa OMMt. U«, ch. Sg. pp. 811 ta IIS t
RawU on tlio CkuiilitDtlaa, cli. 1^ p. IM ; 9 Unitad StatM Law Jownial. April, )e9S,
p|>. 3S1 i« 293.
en. XIV.]
POWERS OF O0XOBE8S — TAXE&
6T9
vcntion on this subject of the powers of the general goverzuneat
was, "that the national legialature ought to bo enipowerod lO
enjoy the legislative righta vested in Congress by the confedera-
tion, and morouver to k-gieUtc in all cases to wUich the separate
States aru incompotvnt, or in which th<i harmonjr of the United
•31aU'« may be ititerruptod by tlic excrci»» of indindiial legisla*
tioiL"' At a sulttequeut period, the latter clause woa altered,
so as to read tlius: "And, nioi-eovcr, to k^sIaU: in all cases /or
the gentral interettt 0/ tht Union, and also iu tlioMC to which the
States are ai>[ittratcly inooiupcteut, or in which the harmony of
the United States may be iut«rnipU:d by tiic cxerciou of ludivid-
ual lcgi»latioii."* When the iiriit draft of the Conalitutioa u-as
pre|)ared, in pursuance of Uio ntsolutions of tlic convention, the
clause re^[)ect)ng taxation ()>eing the first section of the sewntli
article) stood thus: "The legislature of the United States shall
have the power to lay and collect taxes, duties, ini]>09ts, and ex*
ciace," without any <{ualilicatioa or limitation whatswvor.
% 029. Afterwardfl a motion waa made to refer certain propo*
sitiona, and amcmg others a pro]>ositiou to secure the payment of
the public dcitt, and to apjiropriato funda exclusively for that
purpose, and to secure the public creditors from a viulatioo of
the public fntth, w1h:u pledged by the authority of the legisla-
ture, to a select committee (of five), which was accordingljr
done.* Another coumiitteo (of eleven) was appointed at the
same time, to consider the necessity and exp(.'diency of the debts
of the several States being assumed by the United i^tutes.* The
latter cotnmittee rvportcd that ^'the IvKisluturc of the United
Stales shnll have power to fulfil the ciigugements which havo
been entered into by Congress, and to discharge as well the debts
uf tltc United States as the debts Incurred by the several States
during the late war, for the common defence and general wel-
fare" Tliis proposition, it may be pmsumed, has no reference
whatsoever to the clause in the draft of the CcHistitution to lay
taxes. The former committee (of Hvr) at a later day reported
that there should bo added to the first section of tlie seventh ar-
ticle (tlie t-laiise to lay taxes) tlic following words, " for the pay-
ment of the df bts and the neocssary expenses of tbe United States,
provided, that no law for raising any branch of revenuo, exo^t
■ Jaunt, of ConTPRticm, «S, 80. ST, 13S. It&
* Id. 81, leases. ■ III. 241.
« Ibid.
680
ooHSrmrnoK op thk unitrd states. [book iti.
what may be HpeciallT appropriated for the pajrment of interest
on debts or loaiia, aball continue in force for more thao
years." ' It was then qiovhI to amend tht' firet claiiiie o( Uio re-,
port of the other comniittve (on State debts), so ua to read as
follows: "The legislature shall fulfil the iuiK»gvi»ent8 and dis-
char(!:e the debts of the United Status," which (aftvr an iiiefTect-
ual attempt to amend by striking out the words, *'dischai^e tlie
debts," and inserting the wonla, "liquidut« the claims") (Mdued'
unaiiimously in the alVirmative.' Ha tliat the provision to the]
report, to assume tlio Stikte debts, was struck out. On a subse-
quent day it was moved to amend tlie first section of the seventh
article, so as to read: **Th« legislature shall fullil the enga)e;e--
meuts, and dischurgo the debts of the United Slates, and shall
have power to lay and collect taxes, duties, impoatfl, and ex-
cises," which passed in the aflirmative;* tliiis incnrpamting the
amendment already staled with the clause reapecting taxes in
the draft of the CoUittitution. On a subseijuent day the followr-
ing clause was proposed and agreed to: "All debta contracted
and engagcmenta eniei-ed into by or under the authority of Con-
gress shall bo as valid againitt the United Stales under this Con-
fttitiition a« under the coofederatioo." Ou tlie same day, and
after the adoption of this amendment, it was proposed to add (o^
tho first clause of the first section of the seventh article {to lay
taxes, etc.) the following words: <*for the payment of said debts,
and for tho defraying the expenses tliat shall he incurred for thftj
common defence and general welfare," which pasi^d in the Qeg»-
tive by the vote of ten States against one.* So that the whole
clause stood without any further amendment, giving the power
of taxation in the same unlimited terms as it was rep<irted in
the original draft of 11>e Constitution. This unlimited extent of
the power of taxation seems to have been unnatinfactory ; and air i
a Inter day another committee reported that the clause rcs^iect-^
fag taxation should read as follows: "Tlie legislature shall have
power to lay and collect taxes, duties, imposts, and excises, to
pay the debia and provide for the common defence and ■_-■ r. -i
welfare of the United States ; ** and this passed in the all.
without any division.^ And in tho final draft the whole clauM
now stands thus: "The Congress, etc., shall have power to lay
' Josni. «l CoDV(adol^ 977.
Md. SI4. t Id. »l.
■ li. 179. tM
* U. >8), an. 334.
CM. xir.]
FOWSnS OP COKCRRW — TAXK9.
681
and collect faxes, dutiefl, impotitA, and excisea, to pay the debts
and provide for the common defence and general welfare of the
Ijnitod States. " ' Prom this historical Burrcy it is apparent that
it wu first broii|;ht fonrard in cunnccfiuD with tliu ]>otrcr to lay
taxcfl; tlint it wus originally uduptvd as a qualifR-ation or limi-
tutiun of the objects of that power; and that it was not discusscfl
as an ludoiR-ndi'nt puwcr, or ott a gviierul phrow.- pointiiif^ to or
conncctod with the Hii)>8it4ueut eiiumvrutc-d jKiwers. Th<;re was
another unondracnt proiMsed, which would have crested a gaa*
pral power to this eff«:t, but it was never adoptwl, and sevms
silently to have bceu nbuudoned.'
$ 980. liesidi's, it is impracticable in grammatical propriety
to xeparate the different parts of the latter clause. Tlie words
are, "to pay the debts, and provide for the common defence^"
etc. "To pay the debts " cannot b« construed as an independent
power; for it is connected with the other by the copulative
"and." The payment of the antecedent debts of the United
States was already provided for by a dintJnct article;* and the
power to pay future det>ts niiiat necossarily bo implied to the ex-
tent to which they could constitutional ly he contracted; and
would fall within the purview of the enumerated power to pass
all laws necessary and proper to carry the powers given by the
CotiHtitution into effect. If, then, these words wore and ought
to tw ro-id as a part of the preceding power to lay taxes, and in
connection with it {as this historical review estabUshes beyond
any reasonable controversy), they draw the other words, "and
provide for the common defence," etc., with them into the same
connection. On the other hand, if this connection be onc« ad-
mitU'd, it would b<r almost absord to contend, that "to pay the
debts" of the Uuitc-d States was a general phrase, which pointed
to the subsequeiit eiiumoratud powers, and was qualified by them;
and yet, as a part of the very clause^ we are not at litjerty to
disregard it. Ttie truth is, as tho historical review also proves,
tliat after it bad been decided that a positive power to pay the
public debts should be inserted in the Constitution, and a de-sIre
had been evinced to introduce some restriction upon the power
to lay taxes, in order to allay jealousies and suppress alarms, it
was (keeping both objects in view) deemed best to append the
> Jniirn. at Coavrntloti, UI, 858. * Id. 3JT.
* iimra. of OMventka, S9L Sm kIm tfat OmrtiUtiaii. Mt t.
682
COKSTITUTION OP T0E UNITED STATES. \W0K HI.
power to pay th« public debts to th« power to lay taxes; Bad'
tlicn to udd other terms, brcxid enough to embraoo all the other
ptir[KWO« coQt«mplatcd by the Cottstittitioi). Among these nooe
were more appropriate Uiaji the woi-ds "common defenee and
general welfare," found in the; Articles of Confederation, and
snbseiiiient ly with marked emp^oitis introduced into the pt
Me of tile Comiiitution. To this course no opposition was madOt '
because it satislied t]i08« who wished to provide pusitively for
the public dobta, and thomi who wisJied to ha^'ti the power of tax*
ation coextensive with all constitutional objuct» and powers. In
other words, it conformed to the spirit of thai ro«oUitiou of the
eonvoutioii, which authorized Congress " to legislate, iu all ca»e«| ■
for the general intervsta of the Union." >
) Jwinwl of Convmtbn, 181. tS2, SOS. The kttcTof Mr. HadiMii lo Mr. 9to«w-1
■on of 2Ttli Nov(anb«r, 1630, oonuio* nm htitorial mh^ImiJou of the orfgia
pr^gmi or lliia datue, Biibstaiiliallir th« niue an lliat glir«n aboTa. Aftn |«riulng It^l
I imwivo no rMwo to ehattj^ tlw (otrgoiiig taMoniDg^ la om tt«i<«>:t, Mr. llwltitiaj
Mcmii to labor nodtf a mlitalie, tumclj, la mppotiag that ibe profmiitiaa vl the IStk]
of AD|cB«t, (o add lo tha pow«r to by ttXM^ m fnttoatiy uoMiilcd om tfcs S3d
Anpitt, the wonlt^ "tor Ilia ]aynii!Dt of llw debU tad for dcfnyiBf tha dpaiun^
Uial $ttMU be iiicumd for IIid aomnMn ddmce anil gononl v«lfiu«," wm nu«ot«il i
Mconnt of the generality ci ttw pbiaMalo||7' The knom ojiiDHMa of wnna of I
8lai«>, vbich voittl in the noptiva (CoiiiiMticul alono Totwd In tha aSnnatin), i
tlut {I conlil not h»i« btvn r^vcUxl on tliia acoonnt. It ia tnoM prebalil* ibat It
KJaoted, bMaau il containni a nalrietion npoo IIm powir to tai ; for till* |
appear* at lli«t lo have foasd viibout appodt[oa in Itt k*''"*! 'omt. Jmmal '
CoaTNtlioQ, pp. 220, -ta;, £Si, I>I. It may bf acopUbU lo the gatml ml« I«]
bare th» rMnulu uf thl« vauNaUo (talMmaa In U* own wwd*, atwl iWnfura tb*y i
here inatrW. Atiai giring an bictorioal review «f the origin aoil^progms Af Iht
whole danic, hr layi : —
" A ipocial pravkioii in that med* OMibl not liam bran nuttaiary for llw dobta at]
tiM new CoiijrrvM ; fcr a (wwar to provide Money, iwd a powor to ptifcim outaln mM^
of whicli moor]? ia th* onliiaary aAil ■ppcopiat« tnnuia, miiM, of «a(trw% nrry with
tlieoi a powar to fay the exfenae of performing the wta. Nor waa any »|wcial t<R>-
riiion for dobti prapowd, till the oiae of the pefohitlanarr debta wu brnif^ fato
view ; and it ia a (air pmninptkni, ftom the eonm of tiM varied |a«pa«tian* wlri^ j
liave been noticed, that, bit br the old dobte, asd tlwlr auodatlmi with Iht
' OMunon d«r«n«« and geaeral wslfan,' the tlatue would have rmulikol aa mpirliid In
Uie Hn> dnn of « eonatiUtloa, Mprawing goinalty * a pnw«r in (.vai|tr«u to lay and
toUevt taxea, dutite^ impeeti; and axdMa ;* willioot any aJ4itian of the (dinua * I*
provide for the eooMHOii debate and gtawial velfarv.' With tfai> >ilditi"n, in<)-n], tlie
jangnage ot the elauat bttng in conEotmity with that of the otanae in
Confnderallnn, it woold bo qnaltflad, aa in ihnwaillelM, hr tha tpccir
an1^i>fit to it. Rnt llioi* i» antttieat reMon to anpiiow tkat lt»> tiTtn" :
woold not hava hmt intnidncad, bat for tho inlreduclioa o( (ho old il. . ., .j
wUoh tbey happened to ataad in 4 bmiUu' though bopentiva nhtisiit Tluu lif
POWnS OP COKGKEBS — TAXES.
688
CU. XiV.]
°^981. Having tbu« diapoMd of tlio question, vbot is the Inie
[Qtvrprctatioii of Uie clause, at it staudit in the text of Uie Cqq-
tmliHMl, liowcTcr, th»r put nii^ialurtiMl tkron^ Uw niUajuaut aUgo* ot tlw
Coutilntian. J|^k
" If it be ukcd, wbjr Uw Um* ' mi^^^bAom «iid ipnonl mlhtc,' If »M neut
to OMiTty thfl camiinbtaiin power, «U^^^ lUemlly, tluff eipraM, mn LOl qMl-
Uied auil aipUiMU by *«>ini> rtbrnoc* l« Uw ptrtknUr [khmt sutyuiMi, Uu animr i*
U hanl. that alUnu^ It might casUy hart bveq iloue, aoil cxpnionM ah«iri it miglrt
bo «r<ll if it htd bean ikniv yet (ho omUon u (oMWiitod (or by oa iiutUBtioa to the
pLfanologf, onnwIpMil, doabU«Hi by iiUnUty wiUi ibt hwniliw chontrtw at«chod to
it in Uw iutruBMnt ttnat wbkk it wu bomnrtd.
" il«t dwy tt not b« Mitnl witk Uilliiiuly uom pro{ffiMy, ftnil witbout the jKHd*
bUi^ of * MtMkiotT uumr, why, if the t«nm wm mouit to cmbneo »ot oaly «U
the po««n patticuUily cipmn«l, but the imltfiDitc ponr wttich htm bout dalinod
nixUr them, Uib inbiiilioD >at >ot w dodarod ; vhy, on tkt oapiNdUao, M mauh
critiiaJ labor w«* Muplojod In MitinoKtlng tlw |ionIculif [lOwoKi oud in dtttning oad
liButing their uteot I
" Tbe TUMtJOM aod TidHltwls* in the meiilntiw of tho duito in whldi ttw
toiaa 'ceaunun dchttco aad gnwiml wolhre' atifNW an ranuikabU; anil to ho no
oUwrwlio oxjilainMl than by diflitftncca of ofHnioM tontwiitiig tb« noMuily m ihv tona
of > couxUtuUoiia] ptnvUob (or tlw dcbt« of tbe Uvratulian ; aoma el tlw Bonbon
•ppniuuiilinff imprapcc claim* for loaaoa by drpnciotcd btlli <4 cndit ; othcn, on
OTMum of ptnpBT ebinu. If not pontipely brought wiiliia the autboriMd fnactiooi of
tho now gontament ; and otlwn, opin, raiuidcnog tho put lUila of the Unil*d
Btato* ■• vulIlriFully Mvurtd hf Uw priui'ipln tlut uu chiwp in the eoiYranwnt couM
chaagt Um obligalion* of the Mlkn. Boaddoa tho indioatioiw is tho Jonnial, tlw
blUotj of Uw period eanoUono thi* uplanatiou-
" Bnt It ii lo bo (nphalically remorlcfd. that, in the BnlUt»do of morion^ fir«po-
riUOM, anil ontMlaM*!*, thin u bot a linglo omo bating tefetenM 1» Uu lenna
'conimow Mtmtt and pneml w«lCw%' itnloM we wen to to undantand tho ptofioM-
tion fowtaining tkem, made ow Angwt SSlfa, wUcb was diMgyood to by all Uw tiUtoi
except OMk
"TboobviMM<anclaiioB to which wo an bran^t 14 that tlieae t«ca>, copied fnnn
tho Artldw of ConCnlontlim. w«r« TmanM In the now, •« ta the old iutnuneot,
nionly m K«nvrat tttnl^ uxphilBed and limited by Uia mil|)olMd apociflatiom, and
thrrefora n<)uinn)( m> oriticnl atUmtbo a sliuliod precastioa.
" If the jiKtiM of the RTolotkaiarj Coognia bo filouled in op|Mitlaw t« Ihia
rlov of the tue, tbo pleo i* root by Uu notarioty, that, on Hvoeal onoaala, Iho pmc-
tier of thai lolly la bot tbe eipoaitor of tlw ' Attkleo o( Confodontioit.' Hmw
•nlrlni wen not in foroe tUl they «cra Anally ratUled by Hjuyland la 17S1. fnor
to thai riflnl tbe fount of OonfinM wm iniMund by tbo osigonoio* of Iho war,
■nil dorivnl iti mmlkn frsM Iho aequicaccnoe of the State*. Aftoi that erant, haUl,
and N eontianed azpodiency, aHioantiag olfait to • real or apparent oaceMity, prokopJ
tha extndaa tl an nadeflaed ontbority, which wm tho ■«■ nadUy ontleoked, an tho
■neniUra «f Ibe body hetd their aeata darlnff rdeanm, m It* acle, parUcukrly after tho
hfbu* of Uio bUia of owUt, dapmilnl far Uwlr (Aouy on Uu will of the Siaioa, and
M ila tc"nar»l iMputMwy beottw eaanlTeat, Eiaaptaa of dayortare from tbo proecribod
rale are toi well kaown lo rsi|itira ftotl. The caae << the old bank «f North Amerieo
■uiubt be titcil aa a MtmonHo 0M> Tho incoqioeiling ordinwoco grew ost of the
684
CONSTITUTION OP THE DNITEO STATES. [BOOK DI.
stitution, and tuccrtaJDcd that the power of taxation, thoogb
general as to the Biibjccts to which it may be A[^lied, is ;ct
fnlnnd iinMBltj of locb ut [aMttatEon^^rrr on iha wtr, tpjr aiding Itia Aatoam,
wbich wttn ■tarring andet the ncglcd^^kbilitf uf llis SUM U> ftuolah Uivlr *••
MMed <taoU«. Congmt wm at the ^^^Hmach axmre ul lliv ihSdant autbuilf,
lluit they rxominendtd ft to tbo SuU l^^RirM to pui lava giring Joe «llKt t« tha
ordiD*nr», irhfch «W done V rrmnnytvanui and icvml other Statoa.
"Ur. WUmd, jiutly dbliiij:ui»b«>l for his lai«UwtiMl pomn, being ilMpl; ln>
preawd uritb tha importati«e of ■ luik at »uch a crida, poblbhixl a mnall |uinphkl,
tnlilled 'ConiidiTnttlon) on tha Ituk of Korth Antrioa,' In nikli hx Kidcivotnl to
derive Ih« |N)w>irrmii ih^ natura of the Vuiou, fu which ibcooloDitt wm dadandanA
bMami> iiidiifciiilvnt Stales ; and alw tnm the tenor or tke ' ArtidM of Ooefrdarattoa ' j
themwInB. Bat what U particularly trarthjr of notioe h, that with all LLt afellafli:']
■canh In Xhenn artlrloa far mich a poinr, be nrrtr |[)ano*d at the tonu * cainmca '
Itmea and pooiaJ nlbe' aa a aourm of it. K« nther <ho«t to rail tha claho em aj
Kdtal ia the tut, 'that, (or the man fonrenirat man^nntcit ef t^ifHicrsI Entanal^
oT the United Slatoa, d<lcgat» ihall be nonaaUy apjMtntod to meet in Congn**,' ' .
he aaid impUtd that the Unitnl StMet had jpiwtal t^hb^ iJtaml powen, and gcntfall
Ahligatlont, not dtrirad ^in any particular Slate, ncf tnm all th« pani«Dtar Slale^ i^
takm aqiaiatnly, but 'mailing Trom the anion of the whok;* llMaa gantra) pcnrtrt
not b»!ug oontraUtil ,by tbc Dtticia docUring that faeh Slate rrtalMil all powen B«t
granttil by the artictei, bc«auia *iho IniliHdual Statca naror f aMBMti and eonld koi
retain a grntni! power ovw thu oth«f*.'
"Thcauihodly andargttiuenl hew ^™o^t^^d to. if pnvbgtbe ingennity and f«tH-.
otio aaxitftj of the author on one hand, aliow iiiSRi«ntlr, on tha other, that tha t>nna j
'uommon defence and getMtnl BeUiua'coald DAl, uoordlng t« tha kMnni
of tlicm, anU hi* ohjscL
"That the t«inti» in question vrn not snipNted la the conrention aliioh Cbnnali
thi^ C'liKiIitution of any lui^h mcMimng aa bu been ooealnKtirtly applied to them.!
may t« pronouncci] niih cntlm confldoncc Far It ciceHlii the poadhility of briM^ j
thnt the knann odmcatnt (n th« con>vattnn for a Jealnna grant and eanitloiut dallni*
tloo of radaral jmwrtu, «liuiilil hate aiktitly pfrTnillmi tlie lntro<Jiii;lioa «l wnnli or
phraM In a a«na« renderiiig Crnttlea* the netiiatiaaa and defiaitimia ekbonttd
by them.
"Oantldtf. for a nonwnt, tha IrniDHanrahta dUToNBca brtvatB the CenaUtntin
Hmitcd in ita paven to th* MmnaNstad objMla, and azpandad a* U wemU be by tbal
trnfutl clalmrd far th)> phiaaeotogy ia qnoBtion. The dimvatK* it M)alnikat to t««.
mtittitatlotiii, uf oharatrten nneatiaUy oontraMed with *Mih oUwt ; tin oe* pitaaiaing
pQwerfi cunEnoI to wrtajn apedfied Maci, tba other extftkdsd to all caaw vbabnarar. '
For what i* the eoia that wonld not bo embnuxd \iy a gmmil pover to falaa maaej, '
a power to preside far the gmml wlfirt^ uid a |<nw*r to paaa all law* nacaaoMr b»4'
I«opar 1« cany Ihca* powtistntAexacutioa : all such prorii^nk and lava wivrw^lliifi,
at tha aaaaa llin<v all )o«al Uwa and oonatitntiona at Tariaate with thein I r
•aid wHh tha Mdanor boron ni^ fbmiabtd hy tba Joarnal of the CoaTen'..
tban that it ia iininxafble that mtb a eonoiiaUon aa the lattn wnulil hara brm
raaMnmondtd to the Siotca by aU tha menbcn of ibat body, whoat namaa ware an^
acrlbtil In Ihc InatTnment t
" PamlDji fmoa thla rlew af thi> wbm in which th* Unna 'cMBDion dnltmta and
gtMral wtlfarn' «*r« u«*d by tb* (tenns of Uie Ooautitntion. M «• look lur that in
a«^0
powens OF coKGBEss — TAzaa.
686
rcstrictire, as to the purpoiw* for which it may be exercised; it
uwt bocgmiM matter of jmiuiry, what wcro the niaBona for which
wtiieh they mud luv* b*Mi uadentooi bjr Ui« ctmnittiona, or imUur ly Ih* paeplc^
who thnmitK tlirir (vuTiutious. ii(vv|>tp|^Lmificd It. And h*ra tliB ntldfnn li. it
po**tM«, Mill man iirnutiblf. that Hm^^^^ald uot t«T« twoa ngudcd m girlng
a »mp» to fcdMtil logiilaUQO, i n H n ii^i y^^^pitjjtrtiftntbiii tlun any tf th« ({MdAad
jiotten, wUcb pmdnc*d snub altvuuws ofipiwtigo aad iklU lor tMHidoMaU, wlifali
might bo MfcgUMdi igtlutit the iliin|{cn ■pprchtiidal (torn then.
" Tith<«t mmring to the puhluUiod dcbstm of lliea» oonrtntioni^ whidi, m br m
tiwy caa b« (dial oa for Mcnncy, woulO, It b belieTed. Mt Ik^wi th« orldtaco to-
auhod bj Arh ttconbtl poc«»diiig>, U will mSoi Is arntalt tho Ibta of aiatnilmuiU
prapood bj (uch of tUo wnutitau m coiwliknd Um |Knien giautad l« (ho gortni.
mnit too sxtfliNvo or not lafely d«linn].
■ ■ BoddM tha rMthetIm and «ipUui>t«r7 unaidDMntB to Uu t<ist of the Conatitu^
Uon, It may b* «batrnd that a Long Ibt una pranbod ondcr ll» naino and in tfca
tufuti of ' UoeUiatMO of K^ihti ;' all of tham Indicating ajcalouiy ot th* FMbnl
fDvm, and an anxlcly to nuttiply *KiititiM a)Ciintt a cotmtroctiv* «nliit;piu«ut of
Oitm. Bot the af^wal it men particulaily mad* to the nauibn and aalnra cl the
*m«udnunta propoied to be made ipcoiSo Hid inlpgnl parta of tlio oanMitiitieaal
text
" V« Ua* iImi M*oa Statw^ It ^ff*n, oomoimd in adding to ibdt latlfltatlm
a aarier «f anwndmaiila whkti lh«y denned TaqaWl*. OT tlinia afuandnnil*, nina
wen- )it«>pC9(d by the oonrtntiou of Maaachuartta, trt t^ that <4 Sootb CaToliva,
twelve br that of Ntw IlampaUre, twaty by that «f Virginia, tbir^-thiM by that af
New Vsrk, l<rsuly-«is hy tbat «f Korth CMoliaa, aad twaniy-osa by that «S Rhoda
itUud.
" Hers atv a majority of the State* proponng anMndmenta, In ono fawttnot thirty-
thra* by a alogla 8t*t« ; all of tbtK latntdod to cinsmacribr tb* powM gianlad to tha
gituntl gavtimaiaU by «iplu]aUaiu^ natrktion«> or prohlblti«<i% without Irf Ruling
■ (iD^ pnfMttioa lioni a *ii^ State rvrcrring to tbe tenna ' toounoa dtfcnc* and
gmrral velAoc;; ' whidt. If nndotatood to oiDvey the awcrted ^lOWtEr, ooold not Imto
fallad to bo tha fvmw awat atManonsly aimed al, boMoaa <*idaitly mon alarming in
its ra^ta thaa all tha fomn ot^t*d to pnt ICRrtlMr. And that tha lama ihonld
bar* paaaed all«gt4bw anDOliOMl by the mwiy ey«a whlci aaw dan|^ In tmns and
phixM tntfloyri in aaoM «f the dmbI mutate and Umitnl of tlie anaiuvtaled |ww(t^
muit be Ngnid«d a* a dcanonatntion that It wm token for granlnl that the tcnna were
kannlaa^ bacaoae ciplatnod and Iwltrd m in the 'Aitidia of Confcdcfatio^' hy th«
tDiHMniad powan whkh folhnrad thna.
" A Ulu dtmonatiaUon, that iboaa tmaa wm aot aadfttood In any tnm UmI
could isTeat Co^naa with (■)««« not otherwita ba«lo«ad hj the oonslitathnMl
chaitar. May bt found in whil |waed In the faat Mwion of OoQgrcM^ what the tnlgwt
of aniendmant* waa talun op, with the concQiatofy Tiew of ftwalng the Coaatltatloa
from «t!jaclkin* wliKfa had bocn made to lb* extoit ot ita povan, or to tha angaardfd
tamt CMplovwl in daaniblng iImu. Kot coilj war* tlia tarna ' eoinnMB dafoioa and
gestnl inSlm ' maoliced in the long tUt uf ameodmenta btoa^hl (nwanl in tbt ont-
mt, b«t tha Jqunala of CoagrMe ahow, that in the progreea of the ditounooni^ nut a
•io^ propndtlon waa nnda io either btaneh «f the lagidattm whldi rtfaml to the
(liraM> ai admitting a eonalnctin ankiKMaMit of the gtanlad poweta, and raiDliing
an aaicndnMnl goardii^ egalmt It. 8«ch a forbaaranto aad alkaco oa ancb an ooea-
Oow
COSOTITUTION or THE D
[book ttl.
1 arbi-
tliis power v/aa ^vcn, and what v«ru Cb« objoctioiu to whidi it
va» deemed liublo.
§ &A2. That tliv power of taxation slioiiUl bo, to some extent,
Tested ID the nutionul govemi^^ was admitted bj all persons
who ainccrvly di-sircd to ntct^^Km the imbccllitiefl u well a»
the inequalities of the cotife^^non.' Without suvh a |N)wt-r,
it would nut be iwaxiblc to provide fur the 8Ui)port of the imtiuuml
forces hy laud or tica, or the national civil list^ or the on)inar)r
char^-8 and cx[K^'ti8es of gorcninient. For thrse piirpoeoa, at
leant, there must be a constant and regular HU])ply of rorcnue.*
If tiirre should bo a deficii'nilT, one of the two evils must iitovita*
biy ensue; either the people mtiat be subjected to continual arbi-
trarv ]>iunder, or the government must sink into a fatal atrophf.
The former is the fate of Turkey under ita soxereigns: the
was the fate of America under the confederation.'
§ 9it3. If, then, tliere is to be a real, effective, national gov-
ernment, there must be a power of taxation coextensive with it«
powers, wants, and duties. The only inquiry properly remain-
ing is, whether the resources of taxation should bo specified and
limited; or whether the power in this respect should be general,
don, And vnonji m mtny in«inbnra, who b«laOjit«d t« th* part ot the MtMn tihiA
ailed for ext'luiitcrry suil rvHlrivliTv arnendrntnla, kdiI who luul I>mh ctrctml m kaowO
tuJTonlai far llieiii, ouinot b« scoouutcd fot witbont tuppoung that Uh tMnw 'o«m-
non •JFTcncfl and gcufnil wellars ' vore not, at tlutt lims^ daemod luacaptlble of anj
tacli coRilrui^tlon iw hiu ■iiicd ticca applied to thom.
" It RMy In Ihoushi, potliap^ dot to tli* anbj«at to advert to a letter of OoMb
5, 1787, to 8«iiiuv] Ailain*, anil anothar of October Ittb, of Ihc lataa jrmr, to
governor of Virginin, IroiD K. B. Lee, in both or wtiieh It ii wen, that the tcma biA
attmctcd hji notice, imd wore apprebendod by biin *to mibinlt to OongiaM amy
object of liumiui losUlatloii.' But it U panicnUrl]r irorthj^ of rnnark, that altlMngb
a miintwr of th« Svtuto of the United StatM^ when amnudjiiMita to tka COMliliittoM
wtn Uvtort that Iioum, and auodiy addiliona and alletatiou «er« ttiete nadt t« Uia
ll«t wDt from the other, do notice was taken cf thoa* t«nna, m pngnant wilb dan^.
It must he inferred, that the opinion formed bj the diatingnlahed namtMt. at tiie
flnrt rIoiF of the Conititatlon, and befora ft had bam fuDy dbmaaed and chuid
had been cliaugod Into a conTtetlon that tli« tamw did not lut\f adnit the
tioQ h« had originally put oo them ; and thprcfore ne«ded no eiplaiMloty preoaoHa
again *t It."
AKsiDst the opinion of Ur. Madiaon thcrn aro the opinion* of dmb of gnat MaWj
nvnor, and vrnti enlitle<l to the «onfid«nM of ihrii countiy ; and ataong thew Ma; fasi
tnuDirratcd Pnaidenta WaahlagtOQ, JaOknoo, and UoDio«k ud Air. HaaOtM. The
opinion of ih« lactar npon tbl* vary point will \» giraa bmaltat ia hie om vonki
' 8(iB The F«l«ali«. No*. 21. 80.
' 1 Turk. Black. Coara. App. SSS rt atg. ; Id. SM, 345.
• The FvdetaUtt, No. ao. • IbU.
I
CB. IIT.]
POTERB OP C0SGBES9 — TAXES.
m
^
I
^
leaving R full clioiec to the nationni loj^slaturc The opponimte
of th« Co»8tittitiofl Blrenuoiisly coiilemlcd Ibut th« power should
1>6 rcAtrictod ; its friendn as stretiuoiisl; contended that it wan
indispenMble for tlio piililic safctyj that it eJioiild be general
§ d84. The general rt-aaoning, 'by which an unlimited power
waa RiMtained, was to the following effect. Every government
ouirht to contain within itself every power re<]ui8ite to the fn!l
ac'CDtnpl ialiment of the objecta committed to its care, and the
complete execution of tlic trusts for which it is reflponsiblc, free
from every other control but a regard to the public tT^od and to
the security of the pefjple. In other words, every power otigfat
to he proportionato to its object. Tho duties of superintending
the nntionn) defence, and of securing the public pcaco a^inst
foreign or domestic violence, involve a provision for casnaltics
and dangers to which no possible limits can bo assigned; and
therefore the power of making that provision onglit to know no
other hounds than the exigencies of tho nation and tlie resources
of tho community. Revenue is the essential engine by which
the means of answering the national exigencies rauat be pro*
cnred; and therefore the power of procuring it muat neeesaarily
be comprehended in that of providing for those exigencies.
Theory aa well aa practice, the past experience of other nations
as well as our own aad experience under the confederation, con-
spire to prove, that the power of procuring revenue ia unavailing
and a mere mockery, when exercised over States in their collec-
tive capaoities. If, therefore, tho federal government was to be
of any efficiency, and a l>ond of union, it ought to be invested
vith an unqualified power of taxation for all national purposes.'
In the history of mankind it has ordinarily been found, that in
the usual progress of tbinga the necessities of a nation in every
state of its existence arc, at Icoat, equal to Its resources.* But,
If a more fiivunible state of things sliould exist in our own gov.
eniment, still we must cxjK-ct reverses, and ought to jirovido
against them. It is impossible to foresee all the various changes
In the iwwture, relations, and power of different nation.^ which
might affect tJie prosperity and safety of our own. We may
have formidable foreign enemies. We may hare internal ccwn-
mutiona. We may suffer from physical as well as moral catami-
1 Tlie Ft^mlU. No. 31 1 M. Ko. W j Id. Me. SI.
• Th« PoknliM, Ko. M.
668
CONKTITUTIOK OP THE UHITEO STATKS. [BOOK in.
tics; from plagues, famine, and earthquakes; frcnn political
coi»'ulHioiis and rivalrios; £rom the gradual decline uf [Mrticutar
»ourc«B of industry ; and from th« necessity of ctiuntnnt; our own.
habifa and pursuits, in conacquciK:*.- of fon-ign iuiprovutiients and '
competitions, and the rarlablo nature of humuu wants and de-
sires. A Hour** of n-veuue adequate in oa« age may wholly or
partially fail in aiiotlier. Coumieroc or manufaotures or agri-
culture may thrive under a tax in one age, which would destroy
them in another. Tlic power of taxation, therefore, to be use-
ful, must not only be adequate to all the exigencies of (be imtion,
bat it must be ca]>abl« of reaching from time to time all tlie meet
productive sotiroes. It has boen otwerved with no less truth thaa^
point, that*' in political arithmetic two and two do not always'
make four." ' Coostitntions of government are not to be framed
upon a calculation of existing cxigencieti; but u|Mm a combina*
tion of those with the probable exigencies of ages, according to
the natural and tried course of human affairs. There ought to
be a capacity to provide for future contingencies, as they may
happen; and as these are, as has Iioen already suggested, illim*
itable in their nature, so it is impossible safely to limit that
capacity."
§ 9&0. In answer to this rcasoQing It was objected, that "it
is not trne, because the exigencies of the Union may not bo sus-
ceptible of limitation, that its power of taxiilion ought to bo un-
coufined. Bevenue is as requisite to the pur|KiHi_-s n( tlie local
administrations as to those of the Union ; and the former an) at
least of equal importance with the latt«r to the hnp]>ine8s of the
people. It is, therefore, as necessary that the State goveninents
should be able to cominiuid the means of supplying their want^
as that the national go^'crnment should possess the like faculty
in rcHpect to the wants of the Union. Rut an indefinite power
in the latter might, and probably would in time, deprive Uie
former of the means of providing for their own necessities; and
would subject fliem entirely to the mercy of the national legis-
lature. As the lavs of the Union are to become the suprcmo
> Tbt FadtnUtt. M«. tl.
• Tbt Fefanii*!, No. U : 1 EUiof « Dttaln, 77 to 99 ; liLSM toSOS; Id.3O0.lll
to S1«. 82t to SM ; Id. 337: 1 Elliot'* I>«b«M, DS. M, llS : td. ItSlo^M ; S RlHal'i|
D«lmtM. lai, tei. aso ; 9 Awn. Humoid, SSI. ISS [ 1 Tiutktr'i Klw^k. i:<mai. ~
330. 33S.
CR. xir.]
POWraS OF COKGBBBS — TAXIB.
C89
vr of the land, and as it is to hare power to pass all laws that
■7 be oeoossarj for carrj'iog into executioD the auUiorities
with whi«h it is proposed to vest the national government, it
might at any time abolish the taxea imposed for State objects,
U{(on the pretence of an interference with its own. It miglit
allege a necesntty of doing this in order to give eRicacy to the
national revenue; and tJitts all the resoarces of taxation might
by degreea become the subjecta of fedora) monopoly to tlie entire
exclusion and destruction of the State gorcmmenta. " ' The
diflicultiee ariaiug from tliis collision between the State and na-
tional govemntente ini^it be easily avoided by a 8ei>aration and
distinction as to the subjects of taxation, or by other methods
whii'h mipht be easily devised. Thus, fur instance, the gvncrsi
govemnicnt mij^it be intrusted with the jiower of external taxa-
tion, such as laying duties und imposts on goods imported, and
the States remain exclusiivly in ])08SCSsion of the power of inlor-
Dul taxation. Ur jwwer might l« gircn to the general govern-
ments to lay taxes exclusively upon certain specified subjects ; or
to lay taxes if retjuisitiona on the States were n<it complied
with ;* or, if the specified subjects failed to produce an adequate
revenue, resort might l>o had to requisitions or even to direct
taxes to supply the deficiency.'
§ 9S6. In regard to tliese objections it was nrged that it was
iu)|wssible to roly (as the history of the government under the
confederation abundantly proved) upon requisitions upon the
States.* Direct taxes were exceedingly unequal and difTicult to
■ The Framlut. Ko. 31 ; I EUiot't Datetaa, 77, 73 to f« -. M. »1, 105, 113 ; Id.
n,»tua»ei Id. 301. 3M, SOS : id. 33* to 338 i 3 miiul* Urbtki^ 61, ». 308 ;
I EUM'i DvImIm, 77 ta »1 ; 1 Tw*. Bbck. Cnmm. Apt^ 310 ; S Amor. Umctnu, SIS,
6(1.
t 3 Am«r. MaiMm. 113 ; 3 RlUol'a DgbitM, Gl, U, SOO, 9M.
■ See Th« FnleraliM. No. SO ; 1 EUiM'a D«IiUm, SM ; I Tncktr'a Bkck. Conn.
Ap^ 334. SU ; 1 Qliol'i Dulaln, >M, 3W i S KlIlM's Mttm, S3, SZ. 11 1. US ; Id.
, SOS, SOS- It »•• noTed in tbt ocnTv^tiim. tfaat wtMncrer nvtnM vu i«^ttit«d
• b* niwd by Ainct unUoa, it ihMld U ^iportkoud ratoiig Iks 8t>l««^ aad tbcn
nUtkntiMileapan ttM8latMMptrtb«a»Miat; and In diAn^lontycf th«ii«>m-
, Oooffrew nlwSld Iw ratltotiMd to pM* mU dlnctinf (lie nodo of nllerting it.
But lUi prapealtioon <ru Tq««ted bjr ■ rotegfwru SMm iqriiMt «aiv on^ St*'" txiXR
divi-M. Jonral «f ibr OonvMitbii. p. tti.
* TIm rnltnliu. Ne. 80 ; 1 EUiot'i DcbUe*, 803, S04 ; Id. 3», 3SS, 337 ; 8 EUiM'f
Dthttm, 108. ISV, lOL
▼OL. I. — 44
690
cossnun-ios op the uxitu> states. [book m.
adjuiit,' and could not safely be relied on aa an ador|nftte or m
isfsctory Boarcc of revenue, except as a final resort whi^n others
more cliKibio failud. The distinction between external and in-
ternal taxation was indeed cs|)able of beinf; reduced to pr%otioeL
But in many emcr^ncics it might loAvo th« national government
vithuiit any adequate ruiourcc«. and compel it to a course of tax-
ation ruinoua to our trade and iiiduiilry and the solid intercttta of
the country. No one of du« retiectiun can contend that eommer-
cial impDrts arc or could l>c oiiunl to «11 future exigencit-s of the
Union; and, indeed, ordinarily tliey may uot be foinid eqiuil to
thorn.* Sappose they arc equal to tlic ordinary cxpcn»e« uf thi>
Union; yet, if war should come, the civil list must lie onltrcly
overlooked, or the military left without any adequate supply.'
Bow is It possible that a government half supplied and half tie-
cessitons can fullil the [iiirpo«cs of its institution, or can provide
for the security, advance the pro8|»crity, or support the reput*-
tion of the commonwealth? How can it ever possess cither
energy or stability, dignity or credit, confidciirc at home or re-
spectability abroad? Hnw can its administration bo anything
else than a ttuceoHsion of expedients, temporary, impotcui, and
dingraccfnl ? Ilnw will it bo able to avoid a frequent sacrifice nf
its engagements to immediate npcessity? How can it undertake
or execute any liberal or enlarged plans of public good ?* Who
would lend to a government incapable of pledginjif any (lermaucnt
resources to nnleem it« debta ? It would l)e tJie conin -' of
needy individuals who roust lx>rrow upon oneroiii; c^'H md
usury, because tlicy cannot promiae a punctilious discharge of
their cniragements.' It would, therefore, not only not Ite wi!U>,
but be the exti-cmc of folly, to stop short of adequate resourccA
for all cmergencieii, and to leave iJie government intrusted with
the care of the national defence in a state of total or [iortiul in-
capacity to provide for the protection of the coromunily against
future invasions of the public peace by foreign war or domestic
) Tb* FnUnljtt, No. SI ; 1 EUiot*i DefaMw, SI. B3 : t EDwf* Ihtuin. 103 1 Id.
im DM, 130 ; 1 ToAn-a m»ck. Conua. ip^ 134, SSi, 11« i S Dkll. R. 171. ITS.
■ The FtitcnUn, Koi II. 8m I Ellioc'i IVbOon, 303 to 8MI.
■ TfaftPedmlul. No*. 30^34. " A gortmmcnV'oiiiloMof ourinort ilMinitQialMd
«UUUM«, Ht. EtUworih, ot CuBnActkaC, ^cakisg oa thu vrrj nilgnt, " trhkh aaa
comninid bot half lt» mouKM. in lik« m mu *ilh but om am (o dffrail kltnatU,"
8|i»«li in Oanotctiant Coavrailioii, Ttb JtBotrj, 17U ; S AMtt> Hskbid, 33S.
• the Fedemlkt No. 30. * IU4.
CH. nv.]
P0WKI8 or
I — TAXE8.
691
lOonviilsioiu. If, iudvcil, w« am to trj the novel, Dot to say
, abfiurd experiment m pulUios, of tying up the liuniU uf gov«m-
meot from prvtccctve mid offcnitiw war fotindcd upon rea80D« of
statey we ouglit certitioly to he ublc t« compel fureiga iiutions to
IjtbataiD from all rncasure* which Bh»l] iujure or cripple na.'
"Ke must Ite nble to repress their aoibitiou aiid di»arm their eii-
mity; to conquer their prejudice* aod destroy their rivalrieit and
jealousieo. Who is no visionary as to dream of auch a moral
infliKDce in a republic over the whole world ? It aliould ne^-er
he forgotten that the chief flources of expense in every porem-
nient have ever ariaon fn>m ware and relkellions, from foreign am-
bitioD and enmity, or fnnn domestic insurrections and factlona.
Aiid it jnay well Iw presumed that what has been in tlie past will
continue to bo in the future.
§ 937. Besides, it is numifeat, that, however adequate com-
mercial iiiifuwts mi^it be fur tlu- ordinury ex|ienditures of peace.
Uic u)x.-rutiuiis oi war mi^it, and imlM-d tirdiiuirily wuuld, if our
ttdvcrsary poaseiwed a large naval force, greatly endanger, if
tfaoy did nut wbully cut off, our supplier from Uiik source' And
if this wore Uie »ok- reliance of the untiuunl guvvrnmcnt, a naiiml
warfare upon onr commerce would, on this very account, be at
oiico the moat (UicccsHful and tho moat irresistible moans uf sub-
duing: us, or compelling: tis to sue. for peace. What could Great
Britain or France do in a naval war, if they were compelled to
Tely on comntercc alone as a resonroe for taxation to raise armies
or maintain navies ? What could America do, in a contest with
a nral power wh(«« navy posseased a anperiority sufficient to
blockade alt her principal porl« ?• And, independent of any such
exigencies, tlic history of the world shows that nothing is more
fluctuating and capricious than trade. The proudest commercial
1 Til* 7Ml>-r*lbit, No. Si. * 3 Elliot'* Dtlwta. IM.
> la tli« mMiil wir «l nu, 1813, MirMa Otntt BffUlii tmi Uw L'biUJ Statr«, vo
hti abiuiilaM iiroari ot the oonwIiuM of tha nnoning. lionrllfaalaMiling th* ilnltM
apo«i ImfottatMiiii <nrra Jouiltd, from iJm nani Ri]>«rMrit7 «f oar oiemjr oar go*eni-
nwnl wen oompdled (o rcwrt lo Aitrct «id totanifll ux«i, to Und Una, anil pxcina i
Mid, crab with «tl thrm adTanUga, it \m BolnrtoiM, Ihit the mdit of the fjorrnmioit
•dnk •xtmiini^j low dttriag iIm oontMt ; tail thp (lablic McnrtUnt wn* iKmRbt and
•oUi ante Uta ray «r« «f tlw admfnMtntMn, at > ditmoDl of am\y Hfly |>*t «Mit
Inm iMr aatnliwl MnannL K«;, at ••>• time it «n* inpneticaUe ta bormw ■■;
' iHMiey npoa lb* ijowniimnt cn^lt. Thi* arait, Isi ii bo iMfttabered, toak phot
•ftcr t<r*Dt; ytu* at BMxutplnl ptixpnity of Una eouetir. Ii U a ad but wlcaun
adawDttloa.
692
COWmUTtOH OF TRE (TN1TBD STATfS. [BOOK in.
nations in one age bare sunk dovn to comparatire insjgnificatice
in another. Look at Venice, and Genoa, and the Uanae Towna,
and Hntland. and Portupil, and ?puin! What is tlieip present
coniniei'cial impoi-Uiuo^;, compared with it* glorr and suoccM in
pant times ? Could «ithcr ol them now eaftly re\y on inipo«l« as
an excluaivo source of revenue ?
§ 938. There is another vcrv imi«rtant view ol thi» snlijceL
If the power of taxatjoa of the ^neral govonuncnt were confined
to duties on imports, it is evident that it might he compe11i;d, for
want of other adei|uutc resources, to extend tlic-8e diilics tn au
injurioits oxecsa. Trade might beeumc embarraaited, and perhaps
u|>pre)t8cd, so as to diminish the rccejpttt. while the duty was in-
creased; amu^'Iinfi, always facile, and always demoralizing in a
republic of a widely extended sca-«oast, would bo most mis-
chievously encouraged.' The first cfTcct would be, that oouinierc«
would thus gradually change its channels; and if other inler«st«
should be (as, indeed, they might be to some extent) aided by
Ruch exorbitant duties, the iiUimnte result would be a great i
diminution of the revenue-, and the ruin of a great branch of
industiy. It can never be either politic or just, wise or [latri-
otic, to found a government upon principles, which id its onli-
uary, or even extrannlinnry, operations must naturally, if not
noeessarily, lead to such a result, lliis would bo to create a
government not for the happiness or prosperity of the whole peo*
plo, but for oppressions and inequalities arising from scan^
means and inadequate jwwers.
§ 939. In regard to the other part of the objection, founded
on the dangers to the State povemmenta from this general iwwer
of taxation, it is wholly without any solid foundation. It aa-
sumea that the national government will have an interest to op-
press or destroy the State governments; a supposition wholly
inadmissible In principle and unsupported by fact, Thi-re is
quite as much reason to presume that there nnll bo a dispositiuo
in the State governments to eneroach on that of the Union.' [n
tnith, no reasoning, founded exclusively on either gnmnd, is
safe or satisfactory, Tliero ought to be power in each goTom-
ment to maintain itself and execute its own powore; but it docs
not necessarily follow that either would hooome dannerons to Ute
other. The objection, indeed, is rather aimed at the structure
CH. riT.]
POWESB OP CnmiRBSB — TAXES.
698
and or^niiiittion of the government than at its povcrs; Bin«« it
is iiti|>i*i)Hibl«, if the «triicture and organization be reasonably
ekitfiil, that any UHurpation or ofipression can tako place.'
§ !>40. Kilt, vaivitif; this t^onsideration, it will at onc« )x> )W'<'n
tJiat the State govemmeiitB have complete meaiiit of scU-protce-
tion ; aa, vitb the sole exception of duties on imports and exports
(which the ConstituUun has taken from the States, unites it is
cxereised by the consent of Ooi^;re«s), the jxiver of taxation re*
mains in the Statrs, concurrent and coextensive with that of
CongrcAS. The sliuhtcst attention to the subject will demon-
stnte this beyond all contivvcrsy. The lunguage of the Consti-
tution does not, in terms, make itancxcluaivc power in Congress;
the existence of a ouncurrcnt power is nut incompatible with the
exercise of it by CongrcKs; and the i^tatea arc nut expressly
prohibited from using it by the Constitution. Under such cir-
cumstunccs the argument is irresistible, that a concurrent power
remains in the States, as a port of tbcLr original and uusurrcn-
derud BOvereignty.'{a)
§ 941. Tite remarks of QtQ Federalist on this point ore wry
full and cogent "There is plainly," says tliat work, "no ex-
pression in the granting clause which makes that power exclus-
ive in the Union. I'here is no independent clause, or sentence,
which proliibits the States from exercising i(. 8u far is Uiis
from being the case, that a plain and eonclusive argmueut to the
contrary is deducible from the restraint laid upon the States in
relation to <]iilie» on im|Hjrt4 and exports. Thin restriction im-
plies an admission Uiat, if it were not inserted, the Slates would
posMSS the power it excludes; and it implies a further admis-
sion, that, as lo iill other taxes, the authority of the Slates
remains uudiminishitl. In any other view it would be both un-
ncoeasary and dangerouB. It would bo nnncccssary because, if
the grant to the Union of tlio power of laying such duties im-
t Tl>« FtWnllit, >'o«. SI, 3S.
< Th« fBknliit, No. Si. Sm Gibbon* v. Ogden. ft Wheat B. t, IM to 9CS. I
Knii't Curara. Ltrt IS. ppi StS, SCT, tM, M0. Tliia M^^e^ bu ht«n abotd; oeaM*
«mt In IlitiM ConiMMitMiH, JB Um tuIm of wtiqitvutiaa of the CoMtilDdoo : and a
vrry iBit*Mtuat iUajtfmlioii Id Um Fxlnmliil, Ko. S2, on ihU vtty polot «/ tucatlan, wm
ctlnl tbrrv. tt M«^ tbrnfon, wlialljr iwtweMMMy lo rvpnt th« TMjnning. Sm «1m
t nntMton-i K. 1M, 316 : S Wlualas't K. 33, St. SS, tS, tft ; B WbMtun'* B. 109. Sid
SSe ; 13 Whcatgn** R. Ui.
In] DobUu K Eris ]« F»Hn^ U1.
694
IICKC OK TUK UKITRO aTATGS. [BCM>R Iir.
plied the exclmion of iJte StatoA, or even tti«ir tiithordtiutron in
this particular, there woald be no need of such a refltriclion, It
would \te dan^rotis, because tlie introduction of it leads directly
to the conclusion which bun b«en mentioned, and wliich, if tlio
reamntog of tJie objector* h« just, could not have bo«n intended ;
] mean that the Stutra, in ull ca^-a to which the rvslriolion did
not apply, would huro a concurrent powvr oi taxation witJi llr«
Union. Tin; restriction in i|uestion ninOU)il« to wlmt Uwveni
call a neg«tivc prejcnuiiti that is, a negation of one thinir nnd an
aflirmaitcc of another; n n*^tion of the authority of the Hlaies
to iuipii#« taxes on imiwrts and exporta, and an aflirmance of
their authority to imiKwo them on other artiolce." '*As to a
supposition of i-epn^nney between the (Hnrer of taxation in th«
States nnd in the Union, it cannot be snpporti^d in that tiense
which would be re(ini»ite to work an exclusion of the Statea. It
in, indeed, possible that a tax mi|;ht be laid on a pariicular ar-
tide by a State, which might render it inexpedient that a fur-
ther tax »liould be laid on the ftamc article by the UniotL B«t
it would not imply a onnntitulional innbility to iniposK! ft further
tax. The quantity of the itn|KK«itinn, the expediency of an in-
orcnae on either side, would bo mutually quesliona of pnidence;
but there would be inroh-ed no direct eonlrudielion uf [lower.
The particular fiolicy of the national and .State »ysteiu of finance
mi)rhl, now and then, not exactly coincide, and mi^t nt<]ulr«
reciprocal forliearance. It i« not, however, a mere pofwibililr of
inconvenience in tJie exercise of powers, bnt an inimi-diato eon-
atitiiCional rcpii^ancy, that can, by Implication, alienate Midi
exlin^iiiih a pre-existinjt right of Mverelttnty." '("J
§ iH± It la tnio that the lawB of the Union are to bo Biiprenw,
But withont this they would amount to nottiin^r. n. niar Ur ud-
miltod that a law laying a tax for the u|^ of the United 8(at<fl
would be supreme in its nature nnd leipitly nneon' " ' li-. Yft
a law abroii^ting a State tax or pi-cventing it« • :> would
> Tlw r.4enIiA K<ml 32, S<. &«•)»> Anwrimn MiM*iaB, SS8, 341 1 1 EtHwt^
0«li.307,3>>i; ld.!ilfi, S16i Id.331ti>asS: ZKIiiut't l)rl>.l|ISl(i»>ti McCaUnokf^
fltur »i UnrjUnd, t W1>m|im'« R 316. 4X$ to 4» i 9 Wboit R. l»». SOfl. SOI : tS
Wbmtan'B B. i*6. WbtUioi a Stata cm tax u iMdnnnfat malail by tW lutfuiia)
goTcniMMit, to >c«owplBh utiaiul o^iect^ wlU ba bcMaTlBr eosililnwt.
(a) A* to (flocurmit |<ow»r nt laiation in tba SIUm «nil tile fcdcnl gantaoM,
tm <:uiu<l Sutta v. Boiwm, 3 CtiO. S12.
CH. XIT.]
P0WEB8 OF COMGRSn — tAZn.
«»
be u olcurlr iinconstitiitional, and therefore not t]ie Bupreme taw.
As fur as aii iiiiprojMsr ovcuiuulutioa of Uixott uo the tutrac thing
miglit tow) to reader the collcelloo dlAiGulC or pracariouH, it
would be a mutual iiiconvoirK^iico not nri»iuir fruu gujicnoril)'
or del'oct of power on fiiihvr side, but (rum an iujudicious
exercise oi if
§ y43. The ^atefl with this concurrent ))Ower will be cntin-ly
saff, aud have amjtie resoarce» to meet nil their wauto, whatever
thejr may he, although few public expettacs. componitivelj speak-
iuK, will fall to their lot to provide for. They will l>e chiefly of
a dome&tic character, and affecting internal polity; whereas, the
resourcea of the Union will oorer tbo vast expenditures ooca-
sioued by foreign intercouree, warn, an<! other charges neoessary
tor the safety and prosperity of the L'nion. The nwre ciril list
of any country is always small ; the expenses of armies and na-
vies and foreiirn relations unavoidably i^reat. There is no sound
reusou why tb« Htatcs should ]>oBsess any ezeliuive power over
sources of rcrenuc not required by their wants. But there is the
most urgent propriety in conceding to the Union all which tnajr
bo conunensuratc to their wants. Any attempt to discriminate
between the sources of revenue wonld leave too much or too little
to the States. If the exclusive power of external taxation were
given to the Union, and of intcrmal taxation to tbo States, it
would, at a rough calculation, probably give to the l^tates a com-
mand of two-thirds of the resources of the community to defray
from a tenth to a twentietb of its expennes: and lo the Union,
one-third o( the resonrces of the eummunily (o defray from ninc-
tentha to nineteen -twentieths of its expenses. Huch an unequal
distribntion is wholly indefetisiliks and, it niity be addiMl, that
tJie resources of tlio Union would or might Iw diminished eiactly
in proportion to the increa«e of demands upon its treasury ; for,
as has ))een already seen, war, which brings the great expendit-
ures, narrows, or ut least may narrow, the resources of taxation
from dntie« on imports to a very alarming degree If we enter
any other lino of discrimination it wilt be equally dilliciilt to
adjust the proper proportions; for the inquiry itself, in respect
to the future wants, as well of the States as of tlie Union, and
their relatire projwrtion, must involve elements forever chan-
ging and incapable of any precise asccrtutiunent Too much or
■ Hm Fedenlwt. K«& 99. 8«i 1 KlUot'* Dob. S07, 808 i Id. »!, 833.
696
CONe»riTL"nOK OV THE UNTTBD STATEii. [BOOK III.
too little would forever be found to belong to tho States, and the'
States aa veil aa the Cnion mif^t be endtngerod by the very
precauliooa to guard againat abuM« of power.' Any sciuirntion
of the subjocta of revenue which could have been fultea u|Kja
would have amounted to a sacrifioc of tho interc^tM of the Union
to tht' power of thu iiidividuiil 8tatC8, or of n HUrn-odtT u( impor-
taut fujK-tiotu bj- the latter, which would have removed them to
a mean provinuiul servitude and dependence.'
§ 944. Other objoctiotu of a specious character were urged
ngaingt confiding to Congress a general power of tuxatioo.
Among these none were insisted on with more (retjuency and
eamcstiieKs than the iucapacitj' of Congress to judge of tlte
proper subjects of taxation, considering the diversified interests
and pursuils of the i^late^ and the impracticability of repn^sent-
ing in that iMMlir all their interests and pursuits.' The principal
pressure of this argument has been already examined in tlu; sur-
vey already taken of the structure and organi7.ation of tho Senate
and House of Bepresentatiree. In truth, if it has any real force
or efficacy, it is an ar^inent againat any national jrovcrnmcnt
having any efficient national powera, and it ia not necessary to
repeat the reasoning oa which the expediency or necessity of
such a government has been endeavoriy] to he dem^insl rated.
And, In respect to the particular subject of taxation, there is
quite as much reason to suppose that there will be an adequate
■aflembtagc of experience, knowledge, skill, and wisdom in Con-
gress, and us adequittc means of ascertaining the proper bearing
of atl tasce, whetlicr direct or indirect, whctlicr affecting ■gri-
cuUurc, commerce^ or nuiuufacturcs, as to discharirc uny oUior
functions delegated to Congress. To suppuHo othcrwiao is tu
suppose the Union impracticable or mischievous.*
§ 94.5. Otiier objections were raised on tJtc ground of the mul-
tiplied means of intluence in tJic national governuicnt, growing
■ Th* rml«t«litt, N'o. 31 ; 1 Tuckn't BUek. Comm. ApfiL SSi, SU, 2Sd.
* Tli« FwlunlLsl cakul*t«l tint the bijheat pcotMhls tDm, requiivl tvr tba nidtnaiT
I'-nnanoiil vxfrnea* of my State ({oTcnMBMt, KouM bot (xcmJ ■ mlllMin «f ihJUn.
Bal Uiat of tin llDkiD. it wm nnnM)!, tnU not b« swMptiUa «l *uj uut huhw*.
The Fttkralut, No. 34.
■ Tt» FwltialMt, NodL 35, Se : I BtiDt-a Dvb SST to tW ; ld.SDaia»lS. 1 Thdc
«'* Blxk. Coinm. App. Str, 333 1 3 Elliot'i Deb. 96 ; liL 18ft. ISd to ISS ; liL 301,
:D3, SOS : M. 333. tu 1 3 EUiot'i DnlxlM. 77 to VI.
* Tlw FoknJut. No. SS, 34, II, IS : t Tutkn** Bhok. Caiim. hfV- t4l, 945.
CH. XIT.]
POWEBB OP CONaREBB — TAXB8.
697
out of the appaintm^nU to oBice, Qpcfitisury in the collection of
tJie rerenuca ; tlic btmt uf ofticcrB which would Hirann over the
land lik« locuBtn to dcvoor tta ftubstancc, and the terrific oppres-
eiunH n.'siiltia}; from dutiblv taxes and harsh und arbitrary rvgu-
latioDfi.' Tbcsc objections wore aimwurvd, lui well might Iw
guppoded, hy appeatn to common-sense and common experience;
ajiil ther are the less neccaearj now to be refuted nince, in the
actual practice of the government, tbef have been proved to he
vigionarf and fallaciouB, the droama of speculative atateamcn
itidulirinir their love of ingtriiious paradoxes or the supiReationB of
fcur, fltimulutcd by diiKontcnt, or carried away by phantoms of
the imagination.*
§ 946. But ajiother cxtraonlinarr objection which shows how
eaittly men may persuade themselves of the truth of alinust any
proposition which temporary interests or excitements iiidiico
them to IK-Iieve, was lir|^ from the North; and it was, that the
impost would be a partial tax, and that the Suutheni States
would pay btit little in comparison with the Northern. It wns
refuted by uiuinswerable reasoning,* and would hurdly deserve
mention if llic opposite doctrine had not been recently revived
and propagated witli abundant iceal at the South, that duties on
importations fall with the most calamitous ineqmility on the
Southern States. Nay, it hug been seriously urged, tliat a single
Southern State is burdened witli tlio payment of more than half
of tho whole duties levied on foreign goods throughout the
Union.
§ &47. Again, it was objected that tjiere was no e«rtainty
that any duties would bo laid on importations, for the Honthem
States might object to all im}>08l8 of this nature, as they have no
manufactures of their own, and consume more foreign goixls than
the Northern States, and, therefore, direct taxes would be the
oomnioti resort to BU]»pIy revenue.' To which no other answer
Deed be given than that the nile of ap|>ortionment as well aa the
inequalities of such taxes would, undoubtedly, produoo a strong
> 'ni>r<>denlkt,KcL3«;SBIUo('i[MialM^S3,53.TI>; Id. 30» ; 3 EUot'i f)«)MMv
U2, 303 i 2 Amerioui Uiuma, M.
> TbB PedMmlMl. Ho. »a : X AMriiM MnMU, SSI; 341 ; 1 QUotV Dob. SI. IBS.
S>i. 300 to »2 : I<1. 337. S3S ; S EUiM'* IM>. B8 ; M. 108 to »l.
* ^M Mr. EUtwonb'i 8{>Mh, 3 AhmiUsq Hiwmn, 333, IIO.
* 1 EUioVt Debate^ M, »U
S coKsrrmmoK op tbb DttfTeo states. [book m.
disinclioation in the nation, and Sjwoinlly in the Southern States,
to resort to tliciii, unlivs und«r extraordinary circiimi»tanc<«.'
An objevtiutt of a directly opposite character wa» altto taken,
namely, iliut the power of laying direct taxes was not proper to
be prantfd to the national govcrnmt'nt, lM><:autie it was unnecee-^
sary, Impracticable, unsafe, and accumulative of exponae.* This
objection ali«o wa« sliovn to be unfounded, and, indeed, nndur
Mrtaiu exigencies whicb have been already alluded to, the na-
tiOTuil government might for want of it be utterly pnwtrated.^
§ 948. Other objpctiona were nrgcd, which it t/evtoB unneci'»-(
sary to enumerate, as they were either temporary in their natunr ,
or were more auxiliaries to those already mentioned. The ex-
perience of tlie national governraent baa hitherto lihijwn the on-,
tire safety, practicability, and even neccasity of its potutoteing tha '
gcnenil power of taxation. The States havs vxcrcieud a concur-
rent power withoMt obstruction or inconvenience, antl enjoy rev-
enues udequutc to all their wanta ; more adequate, indeed, thaa
they could posHibly poesess if tJie Union were abolished, or tbe
national go\'ernnient were not vested with a general power of
taxation which enables it to provide for all ol>jects of common
defence and general welfare. The triumph of tho frieuihi u( tba <
Constitution, in securing this great fundamental sourco of all
real, effective national soreri^ignty, woa mutt Hipial: and it is
the noblest monument of their wisdom, putriotism, and inde-
pendence. Popular feelingft, and popular prejudie««, and local
interests, ami the pride of State nuthonly, and tho jealousy of
State sovereignty, were all against them. Yet they werv nut (lia-
mayod ; and by steadfast appeals to reason, to the calm sens« of
the people, and to the leadons of historr, they subdin-d <i\>-- * ' i
and won conlidcnoe. Without tlie possessioit of (liis |h<^>
Cofiatitntion would have long since, like tho confederalinn, have
dwindled down to an empty pageant. It would have hrcmna aa
unreal inoekery, deluding our hopes and exciting our fears. Ik
woold have (lilted before ns for a moment with a pale and in-
effectual light, and then hare departed forever to the laud of
> ITnck-BlKk. Coiiiiii.App.SS4 t«!»; THFpbdi>ra)Ut,Knt. 13,71, Mi milM'*
DcbttM. «1, «t ; 3 CIltDl-i OtbaU^ 105 : 3 Elllot'a tMmXm. T7 ta >1 ; 8 Journ. uT
Conlia«DL Cobgrt^i, leili Dm. 1791, f. SOS.
• S RIllM-* Mm.U%. Ur to SOI i Id. SaS, »3. 389 : S EIlMt'i JMmo, 77, >1-
■lUd.
CH. XIV.]
POWBKS OP COKGBSas — TXXSB.
CS9
shadoira. There is ao mnch candor and force in tho t-fnnarkfi nf
tlic learned American coninu'Utator on Bla<;k8l(mc, on tbin anl)-
jcct, that they deserve to be cited in thin place.' "A candid
review at Ihiti part of thu ftNlcral Coiwlitiition cannot fail to ex
cite uur just upiilausc of the pi-iiiciplcs U|K^iu whicli it is founded.
All the aiyurncnts ngniiist it appear to have been drawn from
the incx]icdicn4^y of VBtAbllKhing such a form of ^VL-rnmr'nt,
rather Umn from any defect in thi» part of the it_\'stem, ndmitlin);
that a general government was aeectmarj to tho hapftinras and
pnwjx-rily of the St«t«« individnulty. Tliis gnat primary qnos-
tiuu being once decided in tlie uffiniiatii-c, it mif^lit be diflictilt to
prorc that any port of the powers granliMl to CongrcsH in this
clause ought to liave been altugetbcr withheld; yet. Wing
granted, rather as an ultimate provtsioo in any iMMsible case of
emergency than as a means of ordinary revenue, it is to he
wiithcd that tlie exercise of powers, either opprptwivfi in their
o))eration, or inconsistent vnth the genius of the people, or irrec-
oncilable to their prejudices, might he reserved for cogent oeca-
sioiLs which might justify tlie temporary recourse to a lesser
evil, as n means of avoiding one more permanent and uf greater
magnitude "
§ 949. T^c language of tlw Constitution is, **Congn?M shall
have power to lay and collect taxes, duties, im)>0»ts, nnd excises,"
etc ** But all dutits, imp'tst*. and rrnV* shall be uniform
throughout tlic United States." A distinction is here taken be*
tvecn taxes and duties, imiMwts, and excises; (a) and, indeed,
there are other parts of the 1%>nstitution respecting the tailing
power (as will presently be more fully seen), such as the regu-
lations i-efl|ieeling direct taxes, the prehibition of taxoii nr diilii-s
on exports i)y the I'nited States, and the pn)hibition nf in]|Hisls
or datics by the i^tates on imports or exports, which require an
attention to this distinction.
§ 9i)0. In a general sense, all contriinitions imposed hy the
government upon individuals for the service of the State are
called taxes, by whatever name they raay be known, whether by
the name of tribute, tythc, tulliap:. imjKJst, duty, |?nbc1, custom,
subsidy, aid, supply, excise, or other name.' In this scusc they
> I TMkrt'a BUdt. Carooi. Jlpp. MA.
■ ftca ! Stuut'* PdlL Koon. tSG ; iTnck. DkelLConim. Ai>|i>.SSS: IBhuk.Coran.
(a) Sw SeboUj >. BmJ, -a Wail. SSI ; C^Khf, (-'«»t. liffl. «08, «tk «iL
700
CON&TITUIJON OP TBB UNITKD STATES. [BOOK JII.
are osaally divided into two groat clamcs, those which aro direct
and those which are indirect Under the former donomination
are included taxt-s on land ur roal properly ; and undor the lat-
ter, tiLxra on artielud uf cuusuuipl ion. > The Constiliilion, hy
giving the power to lu}- uud collect taxes in general tcniu, doubl-
U-iM meant to iiichide all aurU of tax«s, whctlier direct or iitdi-
reut.^ Bill il mAy be aakod, if such was the intention, why w<^>ni
the Hubseqtient words, 4tUit*, impmli, and exeistt, added in Uic
clause? Two reasons may ho suggested; tlio liritt, tlmt it was
done to avoid all possibility of dottbt in the construction of ihe
clause, since, in common parlance, tho word taxes is soaietiues
applied in contradistinction to duties, imposts, nnd exciseR, and,
in the delegation of so vital a power, it was de^sirable to avoid
all poaftible misoonoeption of this sort; and accordingly we find.
in the very first draft of the Constitution, these explanatory
word? are added.^ Another reason was, that the Constitntion
preecribod different nilcs of laying taxes in different cases, and
therefore it was indispenaohle to make a diwrimination between
the clasRcs to which each rule was meant to ap^ily.*
§ 951. The second section of the first article, which has been
^already commented on for another purpose, declares tliat *^dir«et
taxes shall be apportioned among tlie several Stales which may
be included within this Union, atworditig to their rexjiectivo
numbers." The fourth clati^c of the ninti) section of the same
article (which would regularly be commented on in a future
pofre) declares that "no capitation, or other direct tax, shall be
laid, unless ill proportion to tho census or enumeration hcreio-
beforo directed to be t^ikcn." And Uie clause now under consid-
eration, lliat "all duties, imponts, and excises shall bo uuifurm
throughout the United States." Here, then, two rulca are |>rc-
scribed, the rule of apportionment (as it is culled) for direet
taxes, and the rule of uniformity for dutiet, intpotta, and exeitta.
If there aro any other kinds of taxes not embraced in one or the
other of tliese two classes (and it is certuinly diDieult to ^v«
306 1 SltaU. R. 171; flnith'i WatltbofNolon^ B. S.di. Si B. S. <k. «, T. % P. S,
Ut. 4.
> Th* FodsMlUt. Xm. SI, 34 i 1 Tuck. Bkok . CWam. S33. 338. 330 : SniUi'a VMltfa
of K*tloiM^ B. £, fL 3, Pi. S, Oft 1 and 3: uid App.
* LooghboK-n^ n Bkk«, & WliMt. R. 317. 313. 310.
* Jonn*] of CoiiMatua, StO.
* H;li«a (. 0i>iw<) Sum, 3 DM. 171, 171.
CH. XIT.]
POWKKB OP COXORKB — TAIM.
701
full effect to the words of the Constitution without tiippming
them to exist), it would seem tliat Oongreait is left nt full liberty
to lerjr the Bame by either rale, or by & mixtare of both nilfis, or
LperhapH t>y any other rule not inconsiAtent with the )^:-iiera1 piir-
e» of the Constitution.' It is evident that "dulicis imposts,
and esciaeB " are indirect taxes in the sense of the Constitution.
Bill th« difhculty still n>inain!k to ascertain what taxes are cmi-
pn-hfUiiiHl under this dcHuription, and what under the description
of direct taxes. It has bc«n remarked by Adam Hniitli, that the
private revenue of individuals arises nltimalelyfroni three differ-
ent sources, rent, proht^ and wages; and that every jiuhlic lax
muat bo finally paid (nan some one or all of thrae different sorts
■ of roTenue.* He treats all taxes upon land, or the produce of
land, or upon houses, or parts, or ap|)endagea thereof (such ns
hearth taxes and window taxes), under the head of taxes upon
ent; all taxes upon stoelc and money at interest, upon other pcr-
'sonai property yielding an income, and upon (mrtieular employ-
uienUi or branchca of trade and linsiness, under tlie head of taxes
ou pruGts; and taxes upon salaries under the head of wafces. He
treats capitation taxes, and taxes on cuiuuniable articles, as
mixed taxes, falling upon all or any of the different species <d.
rerenuo.* A full consideration erf these different classiltcationa
of taxes belongs mora properly to a treatise upon political econ-
omy than u|H)n constitutional law.
§ 95'Z. The word "duties" luis not, porlui|is, in all cases, a
very exact stiniificatioii, or rather it is used sometimes !n a larger
and Bomelimes in a narrower sense. In its lai^ sense, it is very
nearly an equivalent to taxes, embracing all impositions or
rOhargea levied ou {>erso»s or things.^ In its more restrained
'■onsc, it is often lued as equivalent to **c»Htomft," which appel-
lation is usually applied to thoM taxes which are ]uiya])le U]>on
ifls and merchandise im|>orted or ex(>orted, and was pi-obahly
'given on aeeount of the luiial and constant demand of tbein for
tbe QM of kings, states, and governments.* In this sense, it ia
> BrltoD *. Cnltnl 8f.U% t DtIL R. 171.
■ SmiUi'i Wctlib of KaUeo*. B. &, oh. a, P. S.
■ Bmlth-i WmIiIi <J Natkoi, B. », ck. 8, P. «, Ut t, 9, 8, 4.
• Bm tht FtimibO, K& 80.
I Bmitli'aWnltiicf K>lion%a4.ck.l.P.S:B.a.Gb.l,art.4; H>bonCM<nii%
S. Tnct^ p. IIS^ ke; 1 BImLCodib. 319, S 14, SIS, 914; C«n. Dig. AwnyoMn;
ID. 49 to D. 4».
702
cossTmmoN op the ositkd statis. fsooK in.
ncorlj- synoDymoiis v)th ** imposts," whicli in sometimes used in
the l*r|ic sense of taxes or duties or impositions, and sometimes
in the more restrained sense of a duty on imported Roods and m«r-i
ohandise. ' Perhaps it is not unreasunublo tu presume that thifl
ruirroirer sense mij^t be ia tho minds of the frameni of the Cotk-
slitution when this clause- was adopted, since, in anotht-r vUuwe; ,
it is mihsoquuntly providwi that, " No tax or duty fhall Ire laid!
on artidt-s exporUd from any State, " and that "No Slat« shall,]
without the consent of Couirress, lay any impotta or dtUit9 go
importa or exports, except what niuy he absolutely necessary for
exccutinf^ its inspection laws."* I'hei'e Is another provision,
that "No State shall, without tite cmuietit of Cnngross, lay an^ j
dutg of tuimaye," etc., from which, perhaps, it may be gathered
that a tonnage duty (by which is to be understood, nut the an-
cient custom in i^glaiid, so called, on wines imported,' but a
duty on the tonnage of ships and Tcssels) vos not deemed an i'm-
poKt strictly, hut a tlvty. Hovevei-, it must be adaiitteit that
little certainty can be arrived at from such slight changes of
phraseology, where the words are susceptible of various inter-
pretations, and of more or less expansion. The most that can
be done is to offer a probable conjecture from the ap|iareut use
of words in a connection where it is desirable not to deem any ,
(Hie sui>erfluous, or syiiouymous with the otiicrs. A leamt-d '
commentator has supposed that the words "duties and imposts **
in Ihe Constitution were probably inti?n<K-d to euiiipreiii-nd cTt-rT
•pccics of tax or contribution not iiicliidol under Uie »i-dinary
terms ^taxea and excises."* Anotlier learned jnd^ has said,'
"What is the natural and common, or technical and appi
meaning of the words dittji and exchf, it is not easy t» a?i
They {vesenf no clear or precise idea to the mind. Uifferent
pcraoDB will annex different siimili<'atioRs to the terms. " On the
same occasion, another learned judge said, "The term dntj/ is
the most compreheusi^'e, next to tho generical term tax; and
< Tht Pedmlitt, ITo. 30 : 3 Elliot'i Delnta. 3Sd.
* Ur> Uadinn ii of opnucoi tb« tonoii imp«M ani dittit, in Aim eUnmt an nsdl
H ■ynoojiMiu, Tbora b much Inroe to bii nQMllciiM. Ur. JIa<1Ik>ii'* Uuht ■»-'
Hr. C*bi3i, 18th Stpt. 1838.
* 1 Black. Caaun. SIS; H*)* m Dntonu, Rug. Lav Tncia, p, 3, tl. 7.clb If,
ck 15.
* I Tiacfc«T'a Bbck. Vomm. App. 213.
* Hi. JiuUm PrtUnem is iljrItOB «. United SUI«^ 3 tKOI. R. 171, 177.
CH. XIV.]
P0WEB9 OP CONflBESR — TIZU.
708
[prtcticallr in flreat Britain (whence w« take oiir fieneral ideas of
t(«, duties, imposta, vxcisea, customs, etc.) embracer taxes OD
Binpa, tolle far paiiaage, etc, and is not confined to taxes on
importations only," '
§ i).'>'ti. "i'kciws" are geoerallr deemed to be of an 0|>p08itc
nature to " impofits, " io the restrictive seiuM! of the latter t^nn,
^■nd arc dcfmi-d to be an inland ini{Miisition, paid aomctinieti upon
coDsuinpticiu of tlie cunimoditj, or fnri|iiL-ntly upon the retail
ftale, which in the last stugc before the conaumptitHi.'
§ 954. But the more iui|M>rlunt inquiry in, wliat are direct
taxes in the scune of th« Couxtilutiuii, uiace they are required to
be laid by the rule of apportionment, and oil indircut taxes,
wlietlier iIr-v fall under the bead of "dtitics. imposts, or ex-
ciaea," or under nur otli«r description, may be laid by the nile
of uniformity ? It is clear that capitation taxcs,'(a) or, hm they
more commonly called, poll-taxee, tliat is, taxes upon th«
^polla, heads, or [keraonH of the eoatributora, are direct taxes, for
the Constitution haa expressly ennmerated them as such. " No
capitation, or ofhur dintet tax, shall bo laid," etc, is the Ian-
iiage of Uiat inatrument
§ 955. Taxc« on lands, hoiHes, and other permanent real es-
teto, or on parts or appurtenances tliercof, liare aliraya bei-u
adeemed of tlic some character, that is, direct taxes.* (A) It lias
m seriously doubted if, in the sense of tlie Constitution, any
taxes are direct taxcJt, except those on polls or on lands. Mr.
Justiee Chiuie, in Hylton r. United States,' (<-) said, "I am in-
clined Io think that tlie direct taxes contemplated by the Consti-
tutioa are onlif tiro, namely, a capitatltMi or poll-tax simply,
bVithont reirard to property, profesaion, or <rther cin-umatance,
id a lax on land. 1 doubt whether a tax Ity a general assesa-
* Hr. JwtiM ChtM, Id. 174. Sm The FdenlUt, Xo. 34.
* 1 BI»ck. CoaiK. 318 ; 1 Tvk. BUck. Catam. Apfi S41 ; Smith'* WmIUi of lf«-
L-tfcni. & 9, di. 8, an. 4 ; S Kllbit'* ntbtim, 90»; S Ellint'* IVI«1«<v t»», SOl
* See 1 Snutli'i W«allti of H4U0W. B. S, a^. 3. art. < ; Tbo Fnlcntitt, So. 811 : t
' Etilot'* Dohain, S0>.
* 1 TtKk. BUnk. Comm. App. tsi, 1S3 ; n;lt«B « L'Mtnl Siato. 9 VtiSl R. ITI :
^The r«l<nlitt, Xo. SI ; IxnghborooKh «. Bkk^ S WhMt. B. SIT la StS.
* S 0*U. R. in.
<»} Sprtn^r«.IIaU«dStalai,101tT.8. <«| 8m PMiOc limnncaCo. B.8onH
esa. 7 WiiL m.
(if springer *. tJnitnl 8utM, tufroi.
g^
T04
CONSTITtTTION OP THK UKITOI BTiOiEB. [BOOK HI.
ment of personnl property within the United States is included
witbin the term direct tax." Mr. Jniitico Patterson, in the sania
ease, said, " It is not neceflKary to determine whether a tax oii
the produce of land l>e a direct or an indirect tax. Terhaps the
immediate product of land, in its original and erode state, aofitt
to be considered aa a [tart of the land itacif. When the produce
is converted into a mauiifaflurc, it aaaumes a new akapo, etc.
Whether * direct taxes,' io the aenso of the Conatitution, com-
prehend any other tax than a eapitution tax, or a tax on land, is
a questionable point, etc t iiuver entertained a doubt that the
principal, I will not say the only, objects that the fnunera of the
Constitntion contemplated, as falling witliiu the rule of appur-
tionment, wore a cupilatioo tux and a tax on tand." And be
proceeded to state that tho rule of apportionment, both a« regards
rcprcBcutntives and as rcfrards direct taxes, was adopti'd to goard
tbo Southern t^tatea against undue impositions and oppreMioaa
in the taxing of slaves. Mr. Jastiee Iredell, in Uie same caae,
said, "Perhaiw a direct tax, in the sense of the Constitution,
can mean nothing but a tax on soinetlitng inseparably annexed to
the soil ; something capable of apportionment midcr all saeh cii^
cumstancM. A land or poll tax may bo considered of this de-
scription. The latter is to be considered so, particularly under
the present Constitution, on account of the slaves in the Southern
.States, who give a ratio in tlie representation iu tha proportioa
of three to five. Either of these is capable of an apporlionmQoL
In regard to other articles, there mar possibly }»: cuiutiderable
doubt" The reasoning of the Federalist seems to lead to Am
same result. '(a)
§ 956. In the year 17&4, Congress passed an act > laying datjea
upon carriages for the conve^iuioo of persoiu which wcro kept by
or for any person for his own nsc or to be let out to h'\n\ or for
the conveying of passengers, to wit, for every coach the yearly
sum of ten dollarg, etc., and made the levy oiiiform throngh-
> TW TeienSA. THat. K. ».
* Aaat mt, cL U.
(a) Sine* tht <mt nt Rjltm *. United
Stalci, tbnvtiM bnmliitUoMuiwMilb-
eDat lb* fDMtlMvhit nnudtnlMA tfnKct
fctt in tha tamiatMm^Mam. In FiHfic
InmniMO Oempnir m. Seals, 7 WiIL III,
it wu deeUvt that • tex iin|wcd «i tlie
IiicoaM of ioMMDce m>m]«ni« tiaa m( *
dlnet tnl. but a dst^ or ntiM. AaA ia
Vmia* Bv>k B Fnmo. 8 KtO. US, • u
of Urn fer c«itnm nfon tbr dn-nlatiMi «it
St4l« bank* «u Md »« a dinr t Ui.
CH. XIT.]
POWBU OP CONGRBBB— TAXES.
ro$
e United St«t«H. The conxtitutJonality of the net was cod-
■tcd, in th« cue before sUted,' iipon Ui« ground that it wu a
fdircrl tax, and 80 ought to l>e apportitned among the States ae-
irding to their nuni)>eni. After solemn argument, the Supreme
3ourt decided that it waA not a direct tax witliin the meunin);
of the Constitatioo. llie grounds of this decision, as stated in
the various u]iinionii of the judgen, were: Grat, the dniiht whether
any tajtes were direct in the seniio of the Constitution, l^ut capita-
tion and land taxes, as has been alreodjr suggested; accoudly,
that in vase* of doubt the rule of apportionment oii|;ht not to )>e
farort'd, bccaiuff it was matter of compromise, and in itself radi-
cally indcfvauiblo and wronp; thirdly, the monstrous inc<iaality
and injiiHtire of the (.■arriitgo tax, if laid by the nile of apportion-
ment, which would show that no tas of this sort could have been
ontcmpiated by the convontion, as within the rule of apportiott-
ment; fourthly, that tti*.^ termit of the Constitution were satisfied
by confining the clause respecting direct taxes to capitation and
land taxes; fifthly, that, accurately speaking, all taxiTit on ex-
Lpenses or consumption are indirect taxes, and a tax on carriages
is of this kind; and sixthly (what is probably of mMt cogency
and force, uud of itself decisire), tliat no tax could bo a direct
one, in the sense of the Constitution, which was not cu|»abte of
apportionment according to the rule laid down in the Constitu-
■tion. Thus, suppose ten dollars were contemploted as a tax on
«ach coach or post-chaise in the United States, and tJie number
of such carriages in the United Htates were one hundred and flTc,
and the number of representatives in Congress the same. This
would produce ten hundred and fifty dollars. The share of Vir-
ginia wwild be y^ parta, or 4190 ; the share of Connecticut would
be ijp parts, orlfTO. Suppose, then, in Virginia there are fifty
carriages, the sum of 9190 must he collected from the owners of
Bc carriages, and apportioned among them, which would moke
FMch owner pay 4S.80. And suppose in Connecticut there aro
but two L-arrisges, the share of that State (^0) mtist be paid by
lie owners of those two carriages, namely, $85 each. Yet Con-
in such a case, intend to lay a tax of but ten dollars on
each coach. And if in any State there should )>e no coach or
post-chaise owned, then there could l>e no apportionment at all.
Tho absurdity, therefore, of such a mode of taxation demonstrates
1 S DiUw'* IWfnrti^ 171.
Yoi. I. — 4S
cossnimos or thk pnited btatbs. [book in.
that such a tax vaanot be ft direct tfix in the seiwe of the Consti*
tutjon. It ia no unawer (o this rcRsoning, that Con^reM, having
di'tortDmed to rnisc such a auin of moD«f &b Roch a tux on car-
riagta would produce, uiiglit apportion the sum due hj the mle
of apportioiiiucQt, and th«n order it to be collected no different
artli^k-s selected in each State That would be, not to lay and
collect a tax on carriagea, but on the articles which wero made
contribotory to the paj'oient. TIiuh, the tax might be called a
tax nn carria^n, and levied on hor»«a. And Ibc samt; object lun
would lie to an appoitioninent of the sum, and then a general
asseflsment of it by C'ongreaa upon all articlce.'
§ %7. Having endeavored to point out the leading distioc-
titma between direct and indirect taxes, and that duties. EmpoHta,
and exciaea, in the aenitc of the Constitution, belong to the lat-
ter claaa, the order of the subject would naturally lead uft lo the
inquiry, why direct taxes are required to be governed by tlie rule
of apportionment, and why "duties, irapo«t«, and excise*" are
required to bo uniform {a} throughout the United Statex. Tin
answer to the former will I>o given when we come to the further
cxamiualion of certain prohibitory and restrictive clauses of the
Constitution on the subject of taxation. Tho answer to the lat-
ter may bc given in a few words. It was to cut off all undue
preferenocA of one State over another in the regulation of aub-
jocta affecting their common interests. Unlcxs duttea, Jmiiosts.
and excises were uniform, tho groMcst and niuiit nppn^s^ire in-
equalities, vitally affecting the pureuila and employments of tho
people of different States, might exiat The agriculture, com*
meroc, or manufactures of one ^tate miglit bo built up on tlie
ruins of thase of another; and a combination of a few States in
Congress might secure a monopoly of certain branches of trade
and busim-ss to themselves, to the injurj-, if not to the di>atruc-
tion, of tJieir less favored nciglibors. The Constitution, tliroogh-
out all its prorisiona, is an instrument of checks and rustruinls,
> 8 DtUu't Rtforia, 171 ; SUmU an Con«L ck S ; t Eltiot't T>*tit StS ; I K«»'(
Cmum. UeL 13, pp. iSP. MOi ] Tuck. BIwk. Camm. Afp. »i.
(a) fniforaitt; ion not nCct to tho
nut of toutkn, *o u to nqniK ill kiada
nf proptitj' U> bt«r a fmpiTilonaUi bui.
den, hilt to til* «hjc«t «t tuktian. Tim*,
•rticlaa maiUiaMM SUtBOiiiiiMba tas«d
iaaaotberimlMi diCMJneldiwJ of irticka
nuda at bom* an tax*d. and xiiHlly
Mt'4. 8m TWumi v. Ktiitirt, ]D3 |}. S.
13S.
en. XIV.]
POWKBS OP C0XGBIB3 — TAZ1IS.
707
as well 08 of powers. It doo» not rely on confidence in the p-n*
eml government to preserve the intercstA of all the States. It is
foonded in a wholesome and strenuous jealousy, which, foresee*
ing: the poAHiliility of miochief, guards with solicitude against any
eiercisc of [lower whirh may endanger the States, as far as it is
practicable. If this provision as to uniformity of duties had
bt-en omitted, althuiif;h IIm^ [wwcr miEflit never have hecn abiiaed
tjj the injury of the feebler States of the Ciiion (a pruHumption
which hist«r>' does not justify us tu dvcminp quite safo or cer-
tain), yet it would, of itself, have been suflicient tu dcmolisli. in
a pructical sciuc, the value of most of the other restricti^'o
claoses In the Constitution. New York and Pennsylvania
ini)il>t, by an ensy combination with the .Southern States, Iia\-e
destroyed the whole navi^tion of Now Kngland. A combination
of a different cbaraotcr, between the New England and the
Western Statea, mijiht hare home down the agrioullure of the
Sooth ; and a combination of a yet different character might ha\-e
struck at th« vital intcreflts of manufactured. 80 that the gen-
eral propriety of this clause is established by its intrinsic politi-
cal wisdom, as well as by its tendency to quiet alanns and
ftuppress- di scon tents. '
§ 95*. Two practical qnestions of great importance have arisen
upon the construction of this clause, either standing alone, or in
connertinn with other clauses and incidental powers given by the
Constitution. One is, whether the government has a right to
lay t.ix«i for any other purpose than to raise revenue, however
mueh that purpose may be for the common defenet or |j^-ncral
welfare. Tlie other is, whether the money, when raised, can be
appropriated to any other purposes than such as are pointed out
in the other euumemted powers of Congress. The former in-
Tdrcs the qucfltioo whether Congress can lay taxes to protect
and ettcourage domcKtic manufactures; tlie latter, whether Con-
gTMs can Hpprupriutc money to internal improvements. Bach of
these questions has given rise to much animated controversy;
each has txH-n nffirmod and denied, with grent pertinacity, zeal,
and elo«|uent reasoning; each has beiwme prominoni in the stnig-
ples of party; and defeat in each has not hitherto silenced oppo-
sition, nr given absolute security to victory. Tlie contest is often
renewed ; and the attack and <lofence maintained with equal ardor.
1 Kn 4 EUiot'i Dalx 3SS, 33«.
708
coNsnroTioK op tsb tJNrreo states. [book nr.
la didcussiug this Bubject^ we (urc treading upon the uhes of yet
anoxtiuguislied fires, — itwedimtu ptr i/fnn mipponitaa eituri
ihhuo; — and while t3)e nature of these Commentariea rnquires
that the doctrine should be freely examined, aa maintained on
either side, the result u-il) he left to the learned reader, without
a desire to influence his judgment, or dogmatical)/ to onnaimca
that belonj^ng to the commentator.
§ itod. First, then, as to the question whether Coogrcas eaa
lay taxes, excef>t for tiie pnrpnses of revenue. TfaiM gubjcot haa
been already touched, in considering what is the tme reudinj^and
interpretation of the claiise conferring the power to lay taxut.
If the reading and interpretation there insisted on be eorrt'Ctf it
furnishes additional means to resolve the question now under
cons i do rat ion.
§ E>60. The argument against the eonatitationat authority la
understood to be maintained on tlie follouing grounda, which,
though applied to the protection of manufaeturea, are cfpially
applicable to all other caaee, where rerenue ia not tho ottjecl.
The (ivni^Tal govommpnt is one of specific poweri, and It oan
rtghiriitly exercise only the powers expressly granted, and thoM
which may bo "necessary and proper" to carry them into effect,
all others being reserved expressly to the States or to the people^
It results, oecesaarily, that those who claim to exercise a power
under th« Constitntion are boond to show thai it is expressly
granted, or that it is "necessary and pro|)cr," as a meaua to ex-
ecute some o( the granted powers. No such proof has hoed
offered in regard to the protection of manufactures.
§ {H>1. It is true that the eighth section of tho firet article of
the Constitution authorises Congress to lay and cullect an impost
duty ; hut it is granted, as a tax -power, (or Uie solo ptirpoM n(
revenue. — a power In its nature esst^'ntialiy different front that
of imposing protective or proliibibory duties. The two are in*
compatible; for the proiiibitory system must end in destroying
the revenue from imports. It has l>een said that the system is a
violation of the spirit, and not of the letter, nf the Constitiititm.
The distinction is not matnriaL The Constitution may bo an
grossly violated by acting againat ita meaning as against its let-
ter Tlic ConsTilution grants to Congress the power of imposSng
a duty on imports for revenue, which power is abu»>;d by bv'mg
converted into an instnimcnt for rearing up the industry ol una
CH. XIV.]
f-OWEBS OF CONQBBBB — TAXS.
709
section of tbe eonntrr on the rvina of another, llie rioUtion,
tlteo, coDBisU ID twiQ)^ a power K^auted for one object to advance
ouuthcr, and ihat by u suurtficc of the original object It is, in
a word, a vMation of pcrvemioH, thn mutit dangeroiui of all, be*
coiue Uie mont iiuidioiu and difTicnlt to reoiitU 8iicb is tlic rea*
Boniiig emuMtinK from high l(%ixluti\-u authority.' On auotlier
interesting occn«iou, the argument has been put in the follow-
Eing ahai)>e. It ia admitted that Congress hu |>uwor to lay and
collect Hucb duties as they may deem ncceeBory for the purposes
of revenue, and mthin tfuM limita so to arrange tlii»o dutira,
as iHeidtntalltf, and to that extent to give protevliuu to the maa-
ofacturer. liut the right ia denied to convert what ia here
denominated the incidental into tlio principal power, and. tran-
scending the limits of revenue, to im)M;ac an additiouul duty
substantially and exclusively for the purpose of affording that
protection. Congress may countervail the regulations of a for-
eign power, which may be hostile to our commoroe; hut their
anthority is denied permanently to prohibit all importation, for
the purpose of securing the home market exclusively to the
dotnestio nuuiufaoturer, thereby destroying the commerce they
were entrusted to regulate, and fostering an interest with which
they have noeonstitulionnl power to interfere. To do so, there-
fore., is a palpable ahuso of the taxing power, which was con-
ferred for the purpose of revenne; and if it is referred to the
authority to regulate commerce, it is as obvimui u [wrversioa of
that power, since it may bo extended to un utter annihilation of
the objw'ts which it was intended to protect,*
{ 962. In furUierance of this reasoning, it has been admitted
that, under the power to regulate commorcc, Congraui is not
limited to the imposition of duties upon imports for tha sole pur-
pose of revenue. It may impose retaliatory dntlcs on foreign
powers; but these retaliatory duties must bo iupoeed for the
■ 8c«l)wazparftioaHd)icDMI,tvponedb]r*<«iitinitlMof UMhoaMoTnpnMiiU-
tira gf Stnith Cuoliat, on 19lh of Dmrober, IStt, (DiI ailojitol ; tlia ilnft of wliirfa
hu bnta Ulrlhouil to Ur. Vito-Pmtdmt CkllMiitit. I h>T« foUow«d. u nrariy u
pnrlimbb^ llw vnr wiird* of ik* r^mt.
* Thit i* citimctal trom llw aililn** of Ibo FrM-1WI« C^nnlloii, at PUUiUlpbk.
hi (ktubnT, ISSl, pfL 39, Si, oltribaud to Uio pn of Mr. Atlon>f7-d«M4«l tkrrim.
Ut. Senator Uifito, ia hi* ipecch Mi Jintwrj, ISIS, Mp LhM he don not k»**
wh>n> i)i« oatutitntiontl ot^tioM to tbe tuilf ijntam an bottcr Nmued np Uuw b
UiU addiM^ r^ H, S3.
710
coNsnrcnoK of the i'Sitkd staibs. [book nt.
regulation of commerce, not for (he oncmiragcracnt of nianiifncC
ures. The power to reflate manufactures nut having been con-
fidt.<4l to Congrcfts, they have no more riglit to act u)>on it than
they have Iw intvrfuru with the HVHtvmii uf education, the {loor-
laws, or the roud laws of the States. Congress is empowered to
lay tiixea for revenue, it is true; but there ia no power to encour-
age, protect, or mcddlo willi manufactures.'
§ 9163. It ia uniioocssary to consider the arguntent at present,
so for as it bears upon the constitutional authority' of Ctniffreas
to protect or encourage manufactures; because that subject will
more properly come under re%iew, in all its bearings, under so-
other head, namely, tlie fiower to regulate commerce, to which tt
is nearly allied, and from which it is more usually derired.
Stripping the argument, therefore, of this adventitious circum-
stance, it resolves it»elf into this statement The power to la;
taxes is a power escliisively given to raise revenue, and it can
constitutionally be applied to no other purpiiaes. The applica-
tion for other purposes ia an abuse of the power; Rnd, in fact,
however it may be in fonn disguised, it is a premeditated usnr-
pnlion of authority. WTienever money or revenue is wanted, for
constitutional purposes, tlie power to lay taxes may be applied
to obtain it. When money or revenue is not so wanted, it ia not
a profter mcanH for any constitutional end.
§ 96-L The argument in favor of the constitutional antliority
is grounded upon the tenns and the intent of tlie Oonslitmien.
It seeks for the true meaning and objects of the power, aceordit^
to the obvious sense of the language and the nahtre nf the gov-
ernment proposed to Iw established by that instrument It relies
upon no strained construction of words; but demands a fair and
reasooabtc iuterpretatiou of tlic clause, ^(t^out any restrictions
not naturnlly implied in it or in the context. It will not do to
awiime that the clause was intended solely for the purposett o(
raising revenue, and then ar^e that, being so, the power eanoot
l>e constitutional ly applied to any other |Rir|)iiees. Tlie very
point in controversy is, whether it ia reslricted to puriMsi-s of
re\-enae. Iliat must lie proved, and cannot be assumed, as tJte
basis of reasoning.
§ 96.5. The language of the Constitution is, " Congress dull
have power to lay and collect taxes, duties, imposts, anil «x-
) C«L Dnjioo'iOmtkn, uCti«riMtaB.«tlio(Jdy. IBSI. |<p.ia,lt.
CB. XIV.']
C0K0RB8S — TAXES.
7U
ciecs." If the clause had utoppcd here, and remained in this &!>•
soluttt forni (as it was, in fact, when reported in the first draft
in t]ie convention), there could uot have Immui tlie nlighteflt doubt
on the Kuhject. The aliaolutc power to lay taxpn luclutiea Uie
power in ev«rj form tn which it may be osim), and for every p«r-
poBie to which the Icgialaturo may chooei' to apply it This re*
suits fn>m tho rcry nature of Much an unrcHtricted )>ower. A
fortiori it might bt' applied by Con);n-s8 to purposes for vliich
uutioQB have been accustomiNl to apply it. Now, nothing is more
clear, from the history of commercial notions, than tho fact that
the taxiui^ power is often, very often, upplicd for other purpoaos
than rercnuo. It' 18 often applied as a rc^ilatjou of commerce.
It is uftun applied as a virtual prohibition upon the importation
of purtk'ulur articles for the oniMurngvmi-ut and protection of
domestic products and indust ry ; for the support of aj^riculture,
commerce, and manufacturi>«;i (or n^talialiou upon forei^ mon-
ojiolies and injurioits reatriotioiis;' for niero purpue«K of state
policy and domcAtic economy; oomelimes to banish a noxious
article of couKimiption; Hometimeo as a liotmty upon an infant
uumufactura or agricultural product; aonietimes as a temporary
restraint of trade; sometimes as a snpprossion of particular cm-
pluymenis; sometimes as a prorogiitive [tower to destroy compe-
tition, and secure a monopoly to the government!*
§ QGd. If, (hen, tlie power to lay taxes, being general, may
embrace, and in the practice of nations does eml>race, all these
objects, either separately or in combination, upon what founda-
tion does the argument rest which assumen one object only, to the
exclusion of ail the rest? which innistB, in effect, that becaoae
revenue may i>e one ottject, therefore it ia the sole object of the
power? which aasumefl ita own construction to bo correct, he-
cause it suits ita own theory, and denii-a the same right to others
entertaining a different theory? If tho power is general in ita
terms, is it not an abuse of all fair reusoniiKi to insist that it is
particular ? tu desert the import of tlw language, and to substi-
tute otlicr and different languuf^ ? Is this allowable in regard
to any instrument? Is it allowable in on especial manner, as
I Hamilloo') Kepurl ob UADnhctatM, in 1791>
* 3«! Mr. JolTcnan'* R*|art on CanimBtCM] Rcrtrktimi, la 17P3 : i Hanbair* Ufa
of WukuiRlon, th. 7, 111 tSl to 487 : 1 VaJt'i Suu t^r^ tH, 434.
■ 8e* 8Mith'> WoUli at ttuians B. G, cb. 2, art. I.
712
COKHnrCTION OP THE OKITBD STATES. [bOOK IH.
to constitutions of gorernmont, growiag ont of tbe rights, duties,
and exigencies of nations, and looking to an infinite variety of
circunutancca, which vaay require very different applications of
a given power?
§ 967. In the next place, then, ia the power to lay taxea, girea
by the Coiiiititiition, a geoeral power, or is it a limited power?
If a limitt.-d power, to what objects in it limiti^l by the terms of
the Constitution?
§ INK- Upon this subject, as has been already stated, three
different opinions ap|>ear to have been bt-ld by staloaineu uf no
common Bagaoi^ and ability. The first is, that the power is
unlimited; and that the sulncquent clause, **to pay the debts
and provide for the common defence and general welfare," is a
substantive, independent power. In the view of those who main-
tain this opinion, the power, being general, cannot witJi any oon-
Btstcncy be restrained to purposes of rcrenuCb
§ 969. The nest is, that the power is restrained by the sabse-
qucnt elauxe, so that it is a power to lay taxes in order to pay
debts, and to provide for the oomuion defeuce and general wel-
fare. Is raising revenue the only proper mode tu provide fur the
common defence and general welfare? May not the general
welfare, in the jtidgineut of Congress, be, in given circnm-
Btances, os well provided for, nay, better provided for, by prohib*
itory duties, or by encouragements to' domestic industry of all
sorts? If a tax of one sort, as on tonnage, or fon-iirn vessels,
will aid commerce, and a tax on foreign raw matcriHts will did
agriculture, and a tax on Imported fiabrics will aid d^unestio
mannfactures, and so promote tlio genera] welhre, mar tbey not
be all constitutionally united by Congress to a law for this pnr>
pose? If Congress can unite them all, may Ibsy not sustain
tiwm severally in neparate laws? Is a tax to aid mautifuctures,
or agriculture, or commerc«, necessarily, or cveji nittnmlly,
■gainst the general welfare or tbe common defenee ? Who is to
decide upon such a point ? Congress, to whom tlie authority is
given to exercise the power ? Or any other b«>dy, ijtate or na-
tional, which may ehoose to assume it ?
§ 970. Besides, if a particular act of CuigreBS, not for reve-
nue, should be deemed an exctss of the powers, docs it follow
(hat all other acts are so? If the commun defence or general
welfore can be promoted by laying taxes in any other manner
OB. XIV.]
POWERS OP coKGBEsa — uxca
718
than for rercnne, who is nt liberty to mj* tiut Conf^rcse cunnot
I eonstitutinnaltjr exertiae the pow«r for «uoh a )>urpoti« ? No one
[liaa a right to any that tli« coninioa dofcucc aud gouural welfare
[can DOrer be promotetl by laying taxes, exocpt (or r«\-unuo. No
ae ha» erer yet b4>en bold enough to amert audi o propoditton.
Different men have entertaiii«d opposite opintona on subjcctd of
this nature. It is a matter of tlieory and speculation, of politi-
cal economy an<l national policy, and not a niattvr of power. It
may he wise or unwise to lay taxes, except (or rcrenno ; but the
vindnm or inexpediency of a measure is no test of its constitu-
tionality. Those, therefore, who hold the opinion above stated
must imavoidably maintain, tliat the power to lay taxi's is not
confined to revenue, hut extends to all cases wheru it in proper
to be used for the common defence and gcncnil wi-lfare.* One
of the most effectnal means of defence against the injuriwts
egulations and policy of foreign nations, and which is inotit
lonly resortwl to, is to apply the power of taxation to the
products and manufactures of foreign nations by way of rctalia-
btion; and, short of war, this is found to lie practically that
Vhich is felt most extensively, and produces the most immediate
redress. How, then, can it be imagined for a moment, that this
not contemplated by the framers of the Couslilutlun as a
Hmeans to provide for the common defence and gt^iicral welfare?
§ 971. The third opinion is, as has been already stated, that
the power in restricted to such sjM'cific objects as are contained
In the other enumerated powers. Now, if revenue be not the lole
and txeiutire- means of carrj'ing into effect all these enumerated
powers, the advocates of this doctrine must maintain, with tbow
of the ROcond opinion, that the |)owcr is not limited to purposes
of revenue. No man will pretend to say that all tliosc enumer-
ated powers have no other objects, or means to effectuate tliem,
than revenue. Bevenue may be one mode; but it is not Uic
sole moAv, Take the power to ^ regulate commerce." Is it not
clear, from the whole history of nations, that laying taxes is one
of the moat usual modes of regulating commerce ? Is it not, in
muny ciuca, tliv W-ni means of preventing foreign monopolies and
mischievous oommercinl restrictions? In such cases, then, the
power to lay taxes is confessedly not for revenue. If so, is not
■ See llflBiaioM'i Ripott on HMUtktam in 17*1 ; 1 UanUlM** W«tfc( (tdjt
ISIO), Tia : 3 ZlWi Debate^ Mi,
714
ooNSTinmojj ov the DmrsD otateb. [booe m.
tJto argtuncnt irresisiblo^ that it is Dot limited U> purposes of
rercaue? Tako another power, tlie power to coin money and
regulate ita value, and that of foreign coin; might iiiit n tax be
laid on certain foreign coin for the purpose of carrying this into
effect by 8U|]prM8iiig the circulation of such coin, or regulating
its raluc y Take the power to promote the progrcea of Bcience
and oaefnl arts; might not a tax Ix) laid on foreigners, and for-
eign iDventious, in aid of this jwwer, ao aa to suppresa foreign
competition, or encourage doiiiP»tic scionco and arts ? Take an-
other power, vital in the estimation of many statcemun to the
eecurity of a republic, — the power to provide for organizing,
arming, and disciplining the militia; may nut a tax bo laid on
foreign arms, to encourage the domcBtic manuXacIuru td arms,
BO afl to enhance our security, and give uniformity to our orga-
nization nod diHtiipline ? Take the power to declare war and its
auxiliary powers; may not Congress, for the very object of pro-
viding for the effectual exercise of tbeae powers, and securing a
permanent domestic manufacture and supply of powder, equip-
nii-nt8, and otjicr warlike apparatus, impose a prohibitory duty
upon foreign articles of the same nature ? If Congrcsa may, in
any or ail of these cases, lay taxes, then, oa revenue constitutes
upon the very basis of the reasoning no object of tlie taxes, ift it
not clear that tlio enumerated powers require the power to lay
tttxca to bo more extensively construed than for purposes of rere-
nuc > It would be no answer to say that the )>ower of taxation,
though in its natui-c only a power to raise revenue, may lie re-
florbed to, as an implied power to carry into effect tbrae enumer-
ated powers in any effcctuHl inunucr. That would be to contend,
that an txprrst power to lay \&\v^ is not coextensive with an I'm-
plUd power to lay taxes; that wlicn the express power la givim,
it means a power to raise revenue only; but when it is implied,
it no longer has any regard to this object. How, then, is a caae
to bo dealt with, of a mixed nature, where revenue is mixed up
with other objects in the framing of the law ¥
§ 972. If, then, tlio power to lay taxes were admirteil to be
restricted to caacs within the enumerated powers, still the advo>
cates of that doctrine are comftelled to admit that the power
must be construed as not conlmed to revenue, but as cxtHnding
to all other objects within the scope of those powers. Where Uie
power is expressly given, we arc not at liberty to say that it
CH. SIV.]
POWEHa OF OOKORESa — TAXBB.
ns
U to be implied. Being given, it mn)- certainly bfl resorted to
u a mcann to efTectuikte nil the powers to which it i» appropriate ;
not becaiioe it is to be implied in the grnnt of those povron, but
because it is expressly ({ranted, as a aiibsuntive power, and tauy
be lued, of tiuurao, aa an auxiliary to them.*
§ 073. So that, whichever oonatruction of the power to lay
taxc3 ta adopted, the same conclusioD is sutttaincd, that tlie
power to lay taxes ia not hy the Oonatitntion confined to pur*
poei<8 of revenue. In ]M>int of fact, il has never been limited to
such purposes by Congress; and all the great functionaries of
the government have constantly maintained the doctrine that it
was not constitutionally so limited.* (d)
§ 974. Sucb is a general summary of tite reaaoning on each
aide, so far as it refers to the {wwer of laying taxes. It will be
hereafter resumed in cxumining thv nature and extent of the
power to re^Iikte cmiimorco. %.
§ 975. Tltc uHkt i]uc«tion is, wlicther Congress has any jwwer
to appropriate money roitied hy taxatiou, or otherwise, for any
other puriMMiM than those pointed out in tbe enumerated powers
which follow tbe clause respecting taxation. It is said, ** raised
by taxation or otherwise;'* for there may l»c, and in fact arei,
other sources of revenue, hy whicli money may and docs come
into the treasury of t)ic United States, otherwise Uinn by taxa-
tion; ss, for instance, by finc«, penalties, and forfeitures; by
sales of the ptiblic lands, and interests and dividends on Imnk-
stocks: by captures and pnxc in times of war; and by other in*
cidcntal profits and emoluments growing out of gnrernmental
transactions and prerogatives. Bnt for all tlie common pur>
poses of argument, tlto (juestion may be treated as one growing
out of levies by taxation.
§ 976. The reasoning upon which the opinion adverse to the
authority of Congress to make appropriations not within tbe
•cope of tJie enumerated powers is maintained, has been already,
> Sm Hi. HKdbcm-i Lttt«t U Mr. Ckbtll. IBlb Sqit. tSSS.
* Tbr |in«cnt OomMMtuita <mv vritteo belot* tbe appMniBeo of Mr. Jolin Q.
AJdwit'* Irtlsr to Ut, Sfcdtet BUrnuoit, b ttSt. Tlut btUr (u luu ham tltatiy
iiitiiKitiol) tonlaiii* * vttr aliili «n4 (i1«bor*l« Tlndicattoa of lb* |Mv*r to Uv Uxn, u
extrnJiME to all puipoan at Uii common ilrfmo* Mill muni woiruw. It in ihr fiilint
rM{K>iiM to ib« ldt«r of Ur. U«liaea to Mr- S|n1ur Stevnuoa, STth Kov. \SSIt, whkli
luu *Tcr yet bota giveo.
(ay S««j)«(,|1D;3.
71«
CONSmDtlON OP THB UKtTEO) BTATEA. [BOOK III.
in a great meaaurc, stutod Id the preceding exMnioation of the
grammaticu) comttruction of the clause giving the power to l»j
taxea.' The controvei-sv it virtually at on end if it jfi once ad-
mitted that t\iv words "to pnivide for tho coiuiuou defence and
general volfaro " are a part and qualification of the powor to lajr
taxes; for then Congress has certainlr a right to a{>j>rupriate
moncj' to any purjioaea, or in any inunncr, conducive to tboM
ends. The whole stress of the argument is, tlierefore, to estah-
tiflh that the words "to provide for the oommon dcf^nee and
general welfare" do not form an independent power, nor anr
<jualirication of the power to lay taxes. And the argumoat iis
that they are "mere general terms, explained and litait).-d by the
subjoined specilications. " It is attempted to bo fortiQvd, as baa
been already seen, by a recurrence to tho history of tJie confed-
eration; to the successive reports and alterations of the tax
clause in the convention ; to the iuconronienccs uf such a large
construction; and to the auppuscd impossibility that a power to
make such appropriations for the common defence and general
welfare should not have bL<cn, at the adoption of the Constitu-
tion, a subject of groat alarm and jeiLlousy, and, as such, resisted
in and out of tho Stato conventions.*
> Sn Vlr)[ini> Rnolatian), 7Lh Jkn. 1S00; Mr. U>diB»i Letter to Mr Spaakn
StavniWD, 2Tlli Nov. 1S30. Hev n1k> i EllJM'i D«b. 2S«, 331 : 1 Elliot's Deb. 314.
* T\u tollowinc Kuiumnry, uLcn from fraiiltat MaJiran'* VMt llEtM4[o im tlia
Bank 80DU1 Bill for tutonul linptoTenmnu, H Uueh, 1817 {* KIhat'» DvtMta*, S8II,
Wl j, eoiiUin* a vrry clear ttaltnicnl a1 t)i« rtMoiiIU)^ "Tonlrr Uh poavT is qoM*
tt«n " Itbal U, of «oii«truclliiK tonJi, i^iuU, luJ olhsr btcmal tnpr«v*iu*aU| " to
th« clxnte lo providu Tor Ui« coinmoa dtrrmoi uul gcncnl wdbrv. ironU," mr* Iw,
"ba conlniy lo tho cstnblUIiiHl rules of iaterftetaUoii u tsadulrix ibn kjircU] and
OM«fnl oiitiMntUin oi power*, which lollow iW <Juim, nugatory uiil iin|irBiM'. Sock
a viow of tho Coiutitntion would hiv* tk* othct of gi>^i*g U> Onngrw • gt*etal ftimtr
of |cgi*l«Ilon, in*U»A of iho •Icfinud nud Ibnitdt oo^ bitbrrU nadoalAMl l« bdiws to
thfin ; 1I14 tntna ' tb« MDiMon ■lrfrar» and general wtjfore * aabridnit nvnr; <>tti«ct
and nul within the purview of « IcgiilattTo tmM. It w««!il ban Ott aB«l of (Bl^ectiag
bMh tha (onstitntion and Uwa of Uw arrfnl SUtM, i» all caMi not tfiniiawnj 0i>
enpud, lo be mpenodod by l)>' Uw« of Caognaa ; it bring exprwly iltclated, tbM lli*
CDnatitadaa of tha 0Bii«l SUtri. anil (b« Ian rode in pntnano* lh«twr. alwtl W
IhoMpramoUwof IIiolaa<), and the jn<lxnof«Tcr7 State )h»llt)r 1
thing in the oonalitiilian or Ins of anj 8taU to tha conlnur aoi '
a riew ti tha Conatitntiaii, flnalJT, wouM han> lli« aiTact of 1 -.
atUAorilyi^tht thileiSIMMfiromatparliripirtimiafilardiiiglM'
Ugtitatnt-pamntf^pn^raXaitdSUtUtoairKvuntM; iaaannchai ij lo
tliog*nar»l wtlfan, being qwiaUona of ^MtjmA Bx^imef.nr _. ».' ja-
dklal AOgniaiDce aod deciaioii. A rartrictioin of lite povu * to provide tvt tb* 1
ca. XI 7.]
POWEBS OF COSOBSS — Tunv.
nt
§ VJ7, Tbfl argument in faror of fhe power in dortro^. In ^Im
firat pUcc, from the langung<e of the clauAC conferring the powr
{which, it is admitted, in its literal terms, covers it);' secondlv,
from the nuturu of the power, which renders it in the highest
dfgroe expedient, if not indiBpen&abli>, for tliu du« o{)«rulionB of
the national government; thirdly, from the early, constant, and
decided niaintenaDce of it by the f;ovcmini.'nt itnd its functiona-
ries, aa well oh by many of our ablest Btati;smcn, from the very
commencement of the Constitation. So, that it hna the language
and intent of the text, and the pmctico of tlie government, to
sustain it against an artificial doctrinu set up on the other side.
§ 978. The argument derived from the words and intent has
been so fully considerfd alrvsdy that it cannot need rcfR'tition.
It is Bummtul up witl) great force in the report of tlie Secretory •
of tJie Treasury' on manufactures, in 1791. "The national
legislature," says he, "has exprcsa authority to lay and collect
tajLQs, duties, imposts, and exciaes; to pay the debts and provide
for tiie common defence and general welfare, with no other ijual*
ideations than that all duties, imposts, and cxcisea shall be uni«
form throughout the United States; that no capitation or other
dire<^ tax shall lie laid, unless in pro]>ortion to nunibere ascer^
tained by a census, or enumeration taken on the principle pre*
■cribed in the Constitution ; and that no tax or duty shall lie laid
on articles vx{>orli'd from any Slate. These tliree qualificatiou
csGvptuI, the power to raise money is plenary and indclimte.
And the objwts to which it may be approiiriatt>d arc no Iras com-
prehensive than (he payment of tlie public debts and tlie provid-
ing for the common defence and general welfare. The terms
* general welfare' were doubtless intended to signify more than
was expro«eed or imported in tlioso which preceded; otherviBe,
numerous exigencies, incident to the affairs of the nation, would
dafmc* and gmunl wslbn ' to cam wUdi u« t» bt pfwriiM far by the axptiidiRin
of ammj woqM Mill Imv* withta Dm k^datli« povcr <4 Omgrm «U tb« gn»t uid
iNwl inpoitant niMMtrM of gortrniMnt, tnoMy bttiiK tli* onUaMy ud noecauy
OMMH of auryiati Oum iota «iM«tion." It w!|] be prroeirfl *l oncfv UmI thit b tb*
(■ma tBtDiilng fatfated on hf Ur. HaiUiMi in dm VIi^w BefMft unI RMotutku of
Tttijui. ISDO: aadiahii Lkit to Mr. ap—to- 8l»waiiii>, «l Wth Sot. 1880 1 Mdbr
the mmtgtBtiamm la tb* DtUte on (be OedUwi; Kll fa 17M. t EUk4'> UAMm,
SM.
■ Mr. lIndiMiD-a Utter 1« Ur. Spc^v StenMoo, STth If or. 1630.
* Mr. tUnulleoi
718
cosSTiTimoN OP rar. ckited btxtea. [book in.
have been left without a provision. Hie phrsae in aa compreheo-
sire as any that could have been used, because it wan not lit that
the conatitutional authoritr g( the Union to appropriate its reve-
nuea shoiiM have been n-8trtct«(l within narrover limits than the
general welfare, and bcvausc this nii-ciMarilr embraces a vaxt
Tariety of particulars which are susceptiblt^ neither of specifica-
tion nor of definition. It in, thcruforo, of nccosaity left to the
discretion of the national Ic^^itilaturc to pronuunco upon the ob-
jects which ooiiccru the gcueml welfare, and fur which, under
that description, an appropriation of money is requisite and
proper. And there sccmA no room for a doubt thaU whalewr
conccrua the general interests of leaniing, of agriculture, of man-
u&ictures, and of coinmerr«, are wiUiin the sphere of the national
councils, to far (W rtyardt an appiteatum of montif. The only
qualification of the generality of the phrase in queation, vhliih
aecins to bo admissible, is this, that the object to which an a|> '
propriation of money is to be made must be general and not I
looai, — its operation extending in fact, or by possibility, Ihrouglt*
ont the Union, and not being confined to a parlirular spot. No
objection oupht to arise to this constmction from a suppasilius
that it would imply a power to do whatever else should appear lo
Congress conducive to the general welfare. A power to apf
priate nioneff with this latitude, which is graiit*^ in esprvss'
terms, would not carry a power to do any other thing not author-
ised in the Constitution, either cxpreHaly or by fair impliration. " '
§ 97!). Buttiio most thorough and elaborate view, which per-
haps has ever boon taken of the subjects will be found in tlia
exposition of President Monroe, which accompanied his loessagv
rc8|>ecting the bill for the repairs of the Cumberland Road (-fth
of May, ISItS). The following passage contains what is most
direct to the present purpose; and, thonjfh lon& it will amply
reward a dilija-nt perusal. After quoting the claiisv of the C^-
Btitution re«{>ecting the power to lay taxes and to provide for the
common defence and general welfare^ he proceeds to aa/ : —
§ 980. "That the second part of this grant gives a ri^t to
> Tb«rB ia DO (knibt Uiat pRudont Wiahitigtoo fullj AxwoRTd in thii otwdna, m
Ml nfwiUil NcomiDcndaiiaiu to CongriM at otyMU aF UiU lort, papodaQr of iIm an-
nmtfjnmM <d Diui>(nctiu««, of louninit, orsaniTi!nll]r, of xif ■■ •■—•<■■-•■■ ■' — i-
tallaiT, of TOiDDiMva asd iuivIkuIoii, of a lulUtary acaAtmy, *i
S Minhall's Ufa d WaaLLDRtoii. di. 4, pp. 231. S3>i 1 Wnt* .-^ui' i^i-^ ^i^ , t
Vait > suiB PapMi, loa, no, m.
CH. HV.]
POWEas op 00KGBE8S — TAZB8.
719
ftpproprintc tho public money, and nothing mora, is eTiilcnt frQm
th« following coiisidiTutioiut: (1) if Ibo right of aitpruprifttiun
U not given hj this clauso, it is not f^ivon &t iill, tlivro tiL-ing no
oth«r grant in thv Cunstitution which irircs it directly, ur which
has any ItvAringon the subject, even by intplicstiun, cxnipt thv
two following: first, tlie prohibition, which is cunUiiied in the
eleventh of the cnumorated jwwers, not to appropnato money for
the au]iport of ainiies for a longer term than two years; and,
Mcondly, the declaration in the sixth member or niaiise of the
ninth section of the first article^ tJiat no money shall he drawn
from the treasury, hut in consequence of appropriations made by
lair. (2) This part of the grant has none of the characteristics
of a distinct and originni power. It is manifestly incidental to
the great objects of the first branch of the grant, which author-
izes CongreM to lay and collect taxes, duties, imposts, and ex-
cises: a power of vast extent, not granted by the confederation,
the grant of which formed one of the principal inducement* to
the adoption of this Cotislitution. II both [Arts of the grant are
taken tog^'tlicr, as thoy must be, for tlic one follows iinniediatcly
after the other in thu same sentunoe, it seems to be iinputssiblo
to give to the latter any AUior construction than that contended
for. Congress shall have {luwcr to lay and collect taxes, duties,
imposts, and excises. For what purpose? To pay the debts,
and provide fur the common defcncu and general welfare of the
United .States; an arrangement and phrascolog}' which clearly
show that the latter |Kirt of tJieclauKc w;ks intended to enumer-
ate the piirjioscs to whioh the money thus raixi-d might he a|i|)ro-
priated. (S) If this is nut the real object and fair construction
of the second [wirt of this grant, it foilovra, either that it has no
import or operatiun whatever, or one of »mch greater extent than
the firet part. This presumption is evidently groundless in both
instanreK; in the fi rat, because no part of the Constitution eaii
he considered as useless, no aentence or elaiiso in it wiUiout a
meaning. In the second, becaoM such a eonstnietion aa would
make the second pnrt of the clause an original grant, embracing
the same olijects with the firat, bnt with much greater power
than it^ would lie in the highest degree alisurd. The order getter-
ally obsen'ed in grants, an order founded in common -senw, since
it promot«-s a eloar underatandlng of their import, is to grant
the power intended to be conreyed in the most full and explicit
720
ooKaTtTcnoN of the umted states.
[BOOK ID.
manner; and thrn to explain or qnalify it, if explanatiun or
quftlificatiuii should bo UMceaar/. This order has. it it b«-
liered, boon invariably observed in all the grants rontained iri Iho
CoDKtitutiuii. In the next place, beirauae, \f the clauae iu (|ue8
tJOD is not con«tnied mci'ely aa an authority to apprtypriatc the
])ublic money, it must be ohTious that it conveyn a power of
indefinite and unlimited extent; that there would hare been no
\ae for the special powers to raiee and auppurt armiea and a
navy; to regiilate commerce; to call forth tho militia; or even
to lay and collect taxea, dutiua, imposts, and excises. An un-
qualified power to pay the debts and provide for Uie common de-
fence and general welfare, as the second part of this clause would
b«, if considered aa a distinct and separate frraot, would extend
to every object in which the poblic could bo intensti'rd. A pnw»?r
to provide for tho common defence would give to Congress the
command ol the whole force, and of all the resources uf tho
Union; but a right to provide for the general welfare would go
much further. It would, In efTcc^ break down all tho barrtcn
between Iho .Slates and the general government, and cousolidato
the whole under ihe latter.
§ 981. "The powers specifically granted to Con^rreas are what
arc called the enumerated powers, and are numbered in the order
in which they stand; among which, that contained in the first'
clause holds the first place in point of importance. If tlie power
created by Uie latter part of the clause is considered an original
grant, unconnected with and independent of tho 5rst, as, in tliat
case, it must he, then the first pert is entirely done away, as aro
all tho other grants in the Constitution, Itciiii^ compleLoly ab-
sorbed in the transcendent power granted in the latter (tart. Bm
if the clanae be construed in the senso contended for, Iht-n crenr
part haa an important meaning and effect; not a line or a word
in it is superfluous. A power to lay and collect taxea, dutii^
imposts, and excises subjects to the cal! of Congresa every branch
of tJio public revenue, internal and external ; and the addition lo
pay tho debts and provide for tho common ilefence and ](eneral
welfare gives the right of applying the money raised, that is, of
appropriating it to the purposes specified, accordini; to a proper
construction of the terms. Hence It followa, that it i« Ihe first
part of the clause only which gives a [tower, which afTocls in
any manner tho power rcmaiuii^ to the States; us tho powor lo
CH. XIV.]
t>0*)3lS OP OOKORESS — TAXES.
721
nti^ moncr from the people, whether it be by taxes, duties, im-
posts, or excises, though concurrent in the States, as to taxcn
and excisea, must neccwuirily do. But tfao uae or ap[iUaition of
the money, after it is rained, ia a powvr altcgi^tlicr of a difforent
character. It iiupusi-fl no burden on tho peuplu, nor can it act
on them in & sense to take power from the Htates; or in any
sense in which power CAn be controverted, or iR-como a question
between the two go^'e^mncut». Ttic application of money raised
under a lawful puwur ta a right or grant which may bo abused.
It may bo applied {inrtJulty among the States, or to improper
purpoaea in our furvigii and domestic cunuems^ but still it is a
power not felt id the sense of other powcrv, since tlio only com-
pliiini which any .^(ate can make of ttiich [lartinlity nnd ubiise ia,
tliat some other .Slatt* or States have obtained greater benefit from
Uic application than, by a just rule of apportionmeat, they were
entitled to. The right of appropriation is, therefore, from its
nature, secondary and incidental to the right of raiding money;
and it was proper to place it in the aame grant and same clause
with that right. By finding tlicra, then, in that order, we see a
.-JKW proof of the senae in which the grant waa made, corrcspond-
ig with tJie view herein taken of it
§ 982. "The last part of Uiia grant, which provide* that All
dutiea, impoats, and excises shall be uniform throughout the
Unit^'d Statett, furniahea another strong proof that it was not
intended that the second part should constitute a distinct grant
in the fwnup almve stated, or convey any other right than tliat of
appropriation. This provision operates e-Tclusively on the i»owor
granted in the first part of the clause. It recilce three branehea
of tJiat power, — duties, imposts, and excises, — those only on
which it could operate; tlie rule by which the fourth — that is,
taxes — should bo laid, being already provided for in another
part of tile Constitution. Tho object of this provisiou Is tusecuro
a just eqiiulity among tho States in (he exercise of that power
by Congnvs. By placing it after both the grants, Uiat is, after
that to raise and that to appropriate the public money, nnd mak-
It^ it apply to the first only, it shows that it niis not inleudi-d that
the power grnntcd in the second should be paramount itt and de-
stroy that trranted in llie first It shows, also, that no snch for-
midable [Hiwer na that suggested luid been trranted in the second,
or any power against the abuse of wbid) it was thought neoea-
VOL. I. — 49
J
722
coNarmrnos OP las ymrED statfs. [book m.
aarjr «pccialiy to provide. Snrely, if it was doemed proper to
gnard a specific power of limited extent and well-known import
agaiiuit injustice and abuite, it would bare Ix^en ntucli more m lo
hare guardt^d against tbv abuse of a power of ftuoh vast nxlent,
and Ko indefinite aa would have been granted by tbe aecond part
of the claunp, if considert-d as a distinct and original grant
§ 9&8. "With thin cuiistructiun all othor enumerated grants,
and indeed all the grantii of power containni in the Conatjtation,
have their full o;)uration and effect. They all stand well to-
gether, fullilling the great purposes intended by them. Under
it we behold a great scheme, consistent In all its parts, a govern-
most inatituted for national purpbHea, veatcd with adequalp pow-
ers for thusc purpuHcti, commencing witli the nio«l important of
all, that of revenue, and proceeding In regular order to tbe
others with which it was deemed proper to endow it; all, too,
drawn with the utmost circumspection and care. How tntich
more consistent is this construction with the great objects of tfao
institution, and with the high character of Iho enlig))teni-d luid
patriotic citizens who framed it, as well as of thuse who ratified
it, than one which subverts every sound principle and rule of
construetion, and throws everj'thing into confaaion.
5 984. "I have dwelt thos long on this part of t}\o subject
from an earnest desire to fix, in a clear and satisfactory maniier,
tbe import of the second part of this grant, well knowing, from
tbe generality of the terms used, their tendency to lead into er-
ror. I indulge a strong hope that the view herein presented will
not be without effect, but will tend to satisfy tbe nnprejudiced
and impartial that nothing more was granted by that part than
a power to apprvpriate the public money raised under the other
part. To what extent that power may be carried will be the
next object ol inqnirj;:
§ 98-J. " It is contended on the one aide that, as tlie national
goremmcnt is a government of limited powers, it has no riji^t
to exjiond money, except in the perfomianw* of acts anihorixed by
tbe other specific grants, according to a strict construction of
their powers; that this grant, in neither of its branches, gives lo
Congress discretionary power of any kind, t>tit is a mere instni-
ment in its hands to carry into effect the powcra eoiitaim'd in the
other grants. To this construction I was inclined in tlie mom
early stage of oar government; but, on further reflection and
CH. zir.]
rOWEBS OF CONGBBaS — XaXBO.
7SS
otMcn-ation, mj mind has undergone a change, for reasooi which
I will frunklj unfuld,
§ 986, *'Thc i^rant coiuiitte, as heretofore oiKterved, of a two-
fold power: the first to nii»o, and the spcund to appropriate, the
public money; aod the terms iwcd iu both inHtances are general
end unqualified. Eneh branch was obviously drawn with a view
to tlto other, and the imptjrt of each touds to illustrate that of the
other. The grant to raise nionev gii'cs a power over every sub-
ject from which revenue may be drawn, and is made in the same
nuumer with the gr*nt« to doclaro war, to raise und support
armies and a nkry, to regulate commerce, to cetAbltsh pust-ofbccfl
and poflUroada, and with all the other specific grmnta to the gen-
eral govei-nroent In the discharge of the power* contained in
anr of these grants, there is no oUier check than that which is to
be found in the great principlen of our system, — the respoiisibil*
ity of the representative to his conslitiients. If war, for exam*
pic, is necensarr, and Oongrew declare it for good cau»p, their
constituents will support tbem iu it A like sop)>ort will be
given them for the faithful discharf!:e of their dnties under any
and every other power vested in the United i^tate8. It affords
to the friends of our free governments the most heartfelt conso-
lation 'to know, and from the best evidence, — our own cxperi*
ence, — that, in great emergencieR, the boldest measures, aueh as
form the strongest appeals to the virtue and patriotism of the
people, arc sure to obtain their most decided approbation. Bnt
should the representative act corruptly and betray his trust, or
otherwise prove tJiat he was unworthy of the eonlideDcc of his con-
stituents, he would lie equally sure to lose it, and to be removed,
end otherwise censured according to his deserts. The fwwer to
raise money by taxea, dutiea, imposts, aud oxeiiics is alike tm-
qoalilied ; nor do I sea any check on the exercise of it, other than
that wliich applies to the other powers above recited, — the re-
sponsibility of the representative to his constituents. Cont^rcss
know the extent of the publio engagements, and the sums neces-
sary to meet them; they know how nmch maybe derived from
each branch of revenue, without pressing it too far: and, |>nying
dne rcf^ird to the interests of the people, they likewise know
which branch tmyiit to be resorted to in the first instanca From
the coinmenoemeut of the government, two branchc« of this
power (duties and imposts) have been in constant operntioo, the
CONSTITCnON OF TUB UNITEO 8TATC8. [boos OX.
nveaue from irhicb hus iiupportod thv gorcnunent in its Tsrioos
brancheis and met it« otiier ordinary cugt^^mcnta. In great
emcr^i'nvli'ai tlio oUior two (taxvB and exciws) have likevise
bccQ n-fturtcd lu; and neither was tliu riglit uor the pulicy ever
called in ijncstioiL
§ 987. "If we looli to the (kerond liranch of ttiia i>ower, that
which authorizes the api>ro[>riatii>ii of the iuou«y tliii^ raised, wa
find thnt it is not less general and unqualified than the power to
raise it. More comprehensive tcrma than to *pay the dehts and
provide for the common defence and general welfare ' could not
have i>eeD used. So intimately connected with, and dependent on,
each other are these two hranchca of power that^ bad either been
limited, the limitation would hare had a like effect on the other.
Had the power to raiiie money been conditional, or restricted to
special purposes, the appropriation must have corrv^mnded with
it; for none hut the money raiited could be appropriated, nor
could it be appropriated to other purposm than those which were
permitted. On the other hand, if the right of appropriation had
boon restricted to certain purposes, it would be useless and im-
proper to raise more than would be adequate to those purptiseB.
It may fairly be inferred that tliese restraints or checks bare
been carefully and intentionally avoided. Tbe power In each
branch is alike brood and unqualified, and eai-h is drawn with
peculiar fitness to the other; tlie latter requiring terms of gnnt
extent and force to accommodate the former, which have been
adopted, and both placed in tbe same clause and sentence. Can
it be presumed that all these circumstanoes were so iiiooly ad-
justed by mere accident? Is it not more jnst to conclude tiuit
they were the rtisult of due deliberation and design t Had it
been intended that Coogrcsa should be restricted in tbe appropri-
ation of the public money, to such expenditures as wire authorized
by a rigid construction of the other specific grants, how easy
would it luive been to have provided for it by a declaration to
that effect. The omission uf such declaration is therefore an
additional proof (hat it was not intended that the gnmt should
he so conatruod.
§ 988. " It was evidently impossible to have suhjected tliis
grant, in either branch, to such restriction, without cxpiuing the
pivemment to very aerioua embamssment How carry it into
effect T If the grant had been made in any degnw dependent
ca. XIV.]
POWKBS OP C0NCKES3 — TAXES.
725
upon the Sates, th« government would hav« experienced the fato
of the ooofederatioa. Like it, it would have withered aud Boon
perished. Had the Supreme Court )>een authorized, or should
Rny other triliunal, distiuct from the guvenunent, be authorized
to interpose it« veto, and to e&y that mure moaej- had been raiat^<l
under either branch of this power (that ia, by taxes, duties, im>
posts, or esciscii) Uian waa DCCL'SHur}' ; that such a lax or duty
w)ut uhcIcim; that the uppropriatiuu to this or that purpose was
unconstitutional ; the movement niigtit have been auspc-nded, and
ttw whole system disorganized. It vsa impossible to liave cre-
ated a power within the goveruocnt, or any other |M)wor, distinct
from Cougnta aud the executing which should control the mo^-e-
rocnt of the government in this res|)ect, and nut destroy it. Hud
it been declared by a clause in tbe Cunstituliuu tliat the ex-
penditures under this grant should he n}«lTicted to the construc-
tion whieh mi^t be given of the other f^nts, such re^tnitnt,
though the most innooent, could not have failed to liave had nn
injurious effect on the vital principles of the government, and
often on its mo«it important measures, lliose wlio might wish
to deft«t a meaaure proponed might construe the power relied on
in support of it in a narrow and contracted manner, and in that
way fix a precedent inconsistent with Uie true import of the
grant. At other times, those who favored a measure might give
to the power relied on a forced or strained construction, and,
succeeding in the object, fix a precedent in the op)>c»ite extreme.
Thtis it is manifest that, if the right of appropriation be confined
to tliat limit, measures tnay oftentimes bo carried or defeated by
considerations and motives altogether independent of, and un-
connected with, their merits, and the several powers of Congress
recci*-e construct ions wpially inconsistent with their true im-
|)ort No such declaration, however, has been made ; and, from
the fair iuijutrt of the grant, am), indeed, its piwitivc terms, the
inference that such was intended seems to hv precluded.
§ 989. " Many considcrutions of great weight operate in favor
of (his construction, while 1 do nut |>erM-ive any M«^>riiHiit aUyc-
tion to it If it be entablishod, it follows that the wonls 'to
provide for the common defence and general welfare ' have a
definite, safe, and useful meaning. The idea of their forming an
oii^nual grant with unlimited power, superseding every other
grant, is abandoned. They will be considered simply as convey-
emi
726
coKSTmrnos op the onited stATsit. [book m.
ti^ a ri|^t of appropriation, — a right iadiapmtHahlo to that ol
ramng a revenue, and ncceBsanr to expenditures under erery
grnnL Ky it, as already observt-d, no new power will be taken
from the Statcis the money to be appropriated being raised under
a )>ower already granted to Congren. By it, too, Hie motivs
for giving a forced or strained constniction to any of tli« otlwr
gpecilic grants will, in most inatAncca, be diminished, and in
many utterly destroyed. The importance of this conBidaraiion
cannot l>e too highly estimated, etnce, in sddllion to the exam-
plea already given, it ought particularly to be rccoiloelcd that,
to whatever extent any speeific power may be carried, tbc ri^tt
of jurisdietion goes with it., pursuing it Uiruiigfa all its ineidonts.
The very important agi'ney which this gnnt haa in carrying into
effect every other grant in a strong argument in favor of tfa« cuO'
struction contended for. AM the other gnuila are limited by the
nature of the oflico* which tlicy have scventllr to perform, each
coureying a power to do a certain tl)ing, and that only; whereas
this is coextensive with the great sdiome of the govemroent tt-
ielf. It is the lever which raisea and puU the whole machinery
in motion, and continues the movement. Should either of the
other grants fail in consequence of any condition or limitation
attached to it, or miitcnniM ruction of its powere, mach injury
might follow; but still il would be the failure of one branch nf
power, of one item in the system only. All the others might
more cm. But should the right to raise and appropriate the {tab*
lie money be improperly restriotod, the whole system might be
sensibly affected, if not disoi^aniied. Each of the other grants
is limited by the nature of the grant itself. This, by tlie nature
of the government only. Hence it became necessary that, lilce
the power to declare war, this power should be commcnaurate
with the great scheme of the government, and with all it« pui^
poecs.
§ 990. " If, then, the right to raise and appropriate the public
money is nut restricted to the expenditun^ under the other spe-
cific gniiils, according to a strict constnictioa of their powen
n?s|iectirely, is there no limitation to it? Qave Ciiniircms right
to raise and appropriate the public money to any and to evcrr
purprae according to their will and plcamreT Tbcy certainly
have not The government of the United States is a litnltm)
government, instituted for great national [wrposca, and for thi«c
cu. x]r.]
POVraS OP OOXGRBSS — TkXtB.
727
ouljr. Other intcroiU arc oonunittwl to the States, idiom dutj!
it IB tu provide for lltOTD. Each government should look to tJie
great amr t^JSL-miHl pur{>c)8i.-9 for whiuli it wus instituted, and
eonfinc iOwlf lo those purposes. A. atato govomniunt will rarely,
if ever, uppljr money to national purpoee*, without making it a
charge to th« nation. The people of the State wodU not permit
it Nor will Congreas be apt to apply money in aid of the iState
administrutiona, for purposes strictly local, in which t)ie nation
at lar^ has no interest, altlioiigh the State should desire it.
The people of the other Statoa would condemn it. They wwitd
declare that Congrras had no right to i&\ them for such a pur*
po»c, and diamias at the next election such of their represents*
tives aa had rotcd for the measure, especially if it should be
severely felt. I do not think that in offices oi this kind there is
much danger of the two govcmnients mistaking their interests
or tlieir duties. I rather auspect that they would soon have a
clear and distinct undurstaudiug of tliem, and move on in groat
harmony. "
§ 991. In reirard to the pnutioc of the goreminent, it has
been entirely in ooiifonnity to the principles here laid dowiL
Appropriations hare never been limited by Congress to cases
falling within the specific poweraenuineniU-d in Ihc Constitution,
whether those (Wwcra be construed in their broad or their narrow
sense. And iu an especial manner appropriations ha^-e be«n
made to aid internal improvements of various sorts, in our roads,
our navi)^tiuu, our streams, and other objects of a national char-
acter and importance. ' In some cases, not silently, but upon dls-
■ It worM t« inpntctkaU* to numntU ■!! tkcae nrioiu ot|jeett of apiiropriiilan
in lUuil. Mas; of tbsin will Iw fouuil MWOMntad tii Pmldant Uoaro*'* Kxptntian,
of 4tb or Uajr, \SiX pp. nU) tS. Th« ulntui apimiptlattea acU »fmlk m vny nmiig
litiRiMaa oa Ibi* mbjtoL EveiT Prtiidtait of iha UrIMI 9Mm. OMpt PwriiMl
Utdinn, aN-iiM to lian tctsd npOM Uw aaiiw doctria*. PreiiiWM JiCmrai tan Wdly
U 4MiMd an e«*ptk«. In kU taity opisioo. alraadjr qnolnl (4 Jeflenon'* Cvnwfi.
6S1). Ik nawifMlr nwnlainad it In fcii Mt—gt to Coagnt (2 Dae. 1800. W.ii i
StaU PapM^ 4S;. 4U). be Mam* lo hna dmM It In alfnliiK tb* btll for the Coiu-
btrlaad Raul, on ISUi Harch, tSOS. Ad of IBOfl, cb. I^ ho oMtaint; gan il ■ fwiial
•uella% aa wall ai npan other octariwi. Bm ilr, Honraa'i Eipaattioo. dd 4Ui Slay,
ItSS, p. 41. But (M t J«S«taan'i Corrafii. UT, wImr Ht. JolTcnan adofda an oi'pinltn
naaoDii^. Prralrlaiil Jarlaoa baa *dopt*>l It with manlfeat rductane* ; Iwl hn conwl.
en it aa tirm\j mlnlitUlird by Iho practka of lb* ga**rnm*iit. K«< hi* Veto Hoaaga
aa tba UayarlUo Raad HUI. tJlh Hay. ISMi 4 ElUat'a Dak 333 l« 33&. Tba opiniana
uaintalBed m CoMgnai^ b* aikd a(^aat Iba wune doctrina, will be favnd is 4 EUiDt**
K
738
CONSTITDTION OP THB CNTTED BTATBO. [bOOK IU.
cuBsion, Confcrcss has f;one the length of maliing upproprtatiofls
to aid destitute foreif^cni and citicH laboring under »crcr«
calamities; as in the niliof of tlie Ht. Doniingo refugees, in 17&1,
and the citizctut uf Vcntizuclo, who suffered from an e«rUiquake
in 1613.' An illustration etiually forcible of ft donwstio charac-
ter, is in the botiatjr given in the cod-fisheries, which wa« stren-
uously rOHisted on constitutional grounds in 171)2, but which still
maintainti iU place in the statute-book of the United States.*
§ 9D2. No more need he said upon this subject in this place.
It will be necessarily resumed again in the discussion uf othur
clauses of the Constitution, and vspecially of the powers to rrf^-
late commerce, to establish post-oflices and pustroads, and to
make internal improvements.
§ 998. In order to prevent the necessity of roeorring again to
the subject of taxation, it seems desirable to brinp toRL'ther, in
this connection, all the remaining provisions of the Constitution
on this subject, thoogfa they are differently arrsnged in that in-
strument. The first one is, " No capitation or other direct tax
shall be laid, unless in proportion to the census, or enumcratjan
hereinbefore directed to be taken." Tliis inuludea poll-taxes
and land-taxes, as has been already remarked.
§ 994. The object of this clause doubtless is, to secure the
Southern States against any undue proportion of taxation; and,
as nearly os practicable, to overcome the necessary ineiquaiities
of direct tax. 'Die Smith has a very lar^i^ slave population ; and
consequently a poll-tax, which should bo laid by the rule of uni-
formity, would operate with peculiar severity on them. It wouM
tax their property beyond its supposed relative value and produc-
tiveness to white labor. Hence a nile is adopted, which in
effect^ in relation to poll-taxes, exempta two-fifths of all aUvea
Deb. SH, S40, US, SH, 3»0, »4. S9t, 3*1, S3S. S3i. licport on hxtoii tR]«M.-
Ipant«,b7Ur. Han*plii}l.iBlbeHaaaear RopmniMlivM, lOUi PcIl IftSI. Sr«l K«at,
Omiuh. Unt. IS. pp. 2SI\ aSE iStrgunt'iCoiial. Uw, cb. 33, n>. Sll (oSM ;IhHe<m
tlia Omut. «h. 9. p. 10( ; 3 UnlU>l Slun l^w Jnur. ApHI, 1»S6, fp, 8:^1, HI In 2S3.
> 8(*Aclaf1SthF(ih,17»4,f^-S;AotorSttiM>7,lB]S.clt.70: 4 EtUot* D<b*iM,
940.
■ See Act of ConKma. of Ifth Ftb. 17BS, eh. < : 4 FJUol'* I>*bBi«*, SSI to S3S )
Act «f IBIS, «Il $1. Sw alBD lUinilloci'i Roporl on UanuUcnins, ]7»1, ■nirle, Amu*
Mm. Tbn upoech of the Hod. Mr. Grinkj, in llin kmM of SoiKli CVimlina. in Dm.
1828, Mbl of lh« Unn. Mr. nii)ier, In iIm Bihim «f KeptnacatatiTca of tlin mrm RUIie, En
^Dm. Itt^ Mntiiin vttv «UbonM mJ abta wpwatoiit of tli* wbol« latgoO. and wlU
nnMrd k dtUgont {kdmL
I
OH. xir.]
POW£nS OP CONGRESS — TAZBS.
729
from taxation, and thus is eappoeed to equalize the biirdon vHh
the white population.*
§ 995. In reapect to direct taxes on land, the difficulties of
tnakiu)^ a due apportionment, bo ai* to ec)ualixe the burdens and
expeows uf tbe Union according to the relative wealth and nbil
it}- of the State*, wore felt aa a most seriotaa evil under the con-
federation. By that instrument, it will be reooUeJted, the
a{^urtioiuni-ut wa^ lo U' among tlio States according to the value
of all land n-idiin each State, granted or surveyed for any per-
son, and the huildings and improvemcitts thereon, to Iw esti-
mated in auch mode as Congress should pre&cril>e. The whole
proceedings to accomplish such an estimate wore so operose and
ini'ouvenient, that Congress, in April, 1783,' reeomnu-ndcd as a
eulmtitute for Uie article an apportioumcut, foundiMl on the busts
of population, adding to the whole number of white and other
free citiieits and inhabitants, including tliose bound to service
for a term of years, thrcc-liftlis of all other persons, etc., iu each
State ; which is precisely the rule adopted in the Constitution.
§ 996. Those who are accustomed to rontt^mplnte iJie circiim*
stances which produce and constitute national wealth, must be
aatisGcd that there is no common standard )iy which the degrees
of it can be ascertained. Ncitlicr the value of lands, nor the
numbers of the people, which have been successively proposed as
tlic rule of State contributions, has any pretension to being
deemed a just representative of that wealth. If we compare the
wealth of tJie Netherlands with that of Russia or Germany, or
even of France, and at the aame time compare the total value of
the lands and the aggregate population of the contracted terri-
tory ol the former, with the total value of tlie lands and the ag-
gregote po|)ulation of the immense regions of either of tiie latter
kingdoms, it will lie at once discovered that there is no compari-
son between the projioi-tioiis of theao two subjects and that of
Uic relative wealth of tlKnte nations. If a like parallel be run
between the American Hlatca, it will furnish a similar result*
Let Virginia be contrasted with MassuchuMtts, Pennsylvania
> Th» raknlK N'a>. 21, K. 51 ; S DtU. R. 171. ITS ; 1 TndMr'i Bkek. t'lHBm.
App. 2M. 2S7 ; 3 Elliol'ii DnhaUx. aos lo 310 ; 8 KlUof* DeUMi, SM ; 3 Ankcr.
Uwum, 4M ) 2 fMMn DrtatM, 33S.
■ • Jouiiul of ConUiMtia Oo^nM, 181, 198, IH.
• Tha rtdtnliit, K#. 81.
730
coNSTiTtrnoN OP ms mmo gtatch. [book hl
witli CoDD«cticut, Marj-laiKl with Virginia, Rhode Island with
Ohio, and the disproportion will be at cmce perceived. Tlie
wealth of neither will be found to be in proportiou to nnmbersi
or the value of lands.
§ 997. The truth la that the wealth c^ nations depends Dpoa
an infinite variety of catuca. Sitnatitm, soil, climate; the tta*
ture of Itie productions: the nature of the j^vernmenta; the gen*
ius of the citiiens; the degree of information they poaaess; the
state of conuneroe, of arts, and iaduatrr : the manners and habits
of the people, — the«e:, and many other circumstaucea, too com*
plex, minute, and adrcntilious to admit uf a particular enumer-
ation, occasion differvnces hardly conceivable in the relatit«
opulence and riches of difffrcnt countries. The consequence ia,
that there can be no common measure of mitiunal wealth; and,
of course, no frenerul rule by which the ability of a State to pay
taxes can be determined.' The estimate, however hirly or de-
liberately made, is open to many errors and inecjualitiea, which
become the fruitful source of discontents, cuntruvcraies, and heart-
burnings. These are sufTieient in thcmsc)T«8 to shake the ftmnda-
tions uf any national governmfnl, when no comrooa artificial rale
is adopted to settle permanently the apportiunment; and everjr-
thini* is left open for debate as often as a direct tsx U to be tin>
posed. Even in those States where direct taxes are convtaatly
resorted to, every new raluation or apportionment is found, prao-
tieally, to be attended with great inconvenience and excitements.
To avoid these difGeullivs, the land tax inEnirland is annually laid
accorditt.g to a valuation made in the rei^ of William the Third
(1692), and Bp|M>rtioned amoa;; the coimtios according to that
%-aliuitiun.' The (ttoss inequality of this prooeeilinf: cannot be
diagnisod ; for many of the eotintles, tbeo comparatively poor, are
DOW enunuwuly increased in wealth. What is Torkshirv or
Lancashire now, with it« denae manitfactnriniKpopuUlitHi, <;(■»-
pared with what it then waa ? Bna when the popiUatioa of eadi
State is ascertained, the mode by which the aoadwment shall be
laid on the lands in the State is a subject of no small cmhamas-
ment It would be proas injustice to tax eadi honsc or ten lu
the same amount, however diflTereot mar be tta value, or howvvrr
different its quality, situation, or productivencsa. And in eid<
mating the alisolute value, so much is aeceaaarily matter of ofUH '.
1 Tb r«tealiM, Vo.ai. ■ 1 Bbak. Oas. fU, OX
CB. XIT.j
POWmS OP COKGRBSB — TAXIB.
781
ion, tiiat different judgftnents may and will arriT« at difForent
re«ulU. And in adjuatinK the comparativo ruluos in different
counties or towns, now ek-mcnta of disoord uru unavoidably in-
troduced.' In abort, it may bo aHirmcd, witboat foar of contra-
diction, that Bome artificial rule of Bp)ioft ionment of a fixed
naturu is indiapciuiabic to thv public rcpo«« ; and, considoring the
)>«.-culiar situation of the American Stat^M, and especially of thfi
aUvc and agricultural States, it is dilTicult to find any rule of
greater equality or justice than that which the Constitution has
adopted. And it may be add«d (what was indt-ed foreseen), that
direct taxes uu laud will not, from causes sufficiently aj)p3rcnt,
be resorted to, eicept upon extraordinary occasions, to supply n
preesing want.' Tbe history of ttw govcmmeut has abiinduntly
Mtablisbed the correctness of the remark ; for in a period of forty
jeora Uiroc direct taxes only have bocn laid ; and those only with
reference to the itato and operations of war. (a)
$ itQH. The Constitution having in another clause declared
that " represcntatii.'es and direct tax«» shall b« apportioned amanff
thf Kveral Sutu» within this Union according to their respocti ve
numbers," and Congress having, in 181^' laid a direct tax on
the District of Colombia (ac«ordii^ to the rule of opportioa-
mcnt), a question was made, whother Congress had constitution-
ally a rifHit to lay such a tax, the District not being one of the
States; and it was nnanimously decided by (he Siiprcrac Court,
Uiat Congress had such a ri^t* It was further held that
CongreM. in laying a direct tax npon the States, was not con-
stitutionally bound to extend such tax to the District or the Tcr*
ritories of the United States; but that it was a mattor for their
discretion. When, however, a direct tax ts to be laid on tbe
District or the Tcrritoriea, it con be laid only by the rule of ap-
portionment Th« reasoning by which thia doctrine is main-
tained will be moat satisfactorily seen by giving it in the very
words used by tho court on that occasion.
> Sm tbe ivmnfa of Hr. Jniike Pattcnoo, (n IlyttM r. trnllod .Suto. 3 Dill. 171,
178. 17».
' 1 TW:k. BiMk. Omm. Ap^ S3t. 2U, uid boIc : M. 1S«, S»7 1 I IMJ. H. 178,
17« i F«UnlMt, Ko. 21. 34 ; 3 BlMt* Dok SOS I» 210l
• Act of «(1> Fob. 1810, th. 113.
* LoniifcbanHiKli r. Rbk*, 5 ^IV1i(«tMi*( R. SIT i Sngsut «n Centl. Ls», ctu SS,
. SM i 1 KhI, Uonun. l«n. IS. i>. 3U.
[a\ AnothM mm Ud on Dm braking onl of Uu diH *ar la IMl.
782
COKSTITCnox OP TBB DKITED STATES. [boOE m.
§ 999. "TboeiKbth iKCtlou of tbe first article gWce to Con-
greaa 'power to Uy and <M>l]ect taxes, duties, impoets, and ex-
cieeft,' (ur llic pur|>u»i-it thcrvinafter meotioned. llxis graot b
Kcnvml, wilhuut limitation u to (tlace. It conaeqaently ex-
tenihi to all ploora over which the p>venuoeDt oxtends. If this
could he doubted, the doubt in removed by the sulnoquent words
whtcl) modify the grant These words are, 'but alt duties, iia-
fmts, and excisca shall be uniform throughout the Cnited
States.' It will not be contended that tiie modificatlou uf th«
power oxtflnds to places to which the power ituelf does not ex-
tend. The power, then, to lay and collect dutlt^ imptxtts, and
excises may he exercised and muxt be exercised throughout the
Uaitod States. Does this term designate the whole, or any par-
ticular portion, of the American empire ? Certainly this ques-
tion can admit of but one answer. It in the name given to our
great Republic, which is composed td States and Territories.
The District of Columbia, or the territory west of the Missfnirt,
is uoi liMs within tbe United States than Uaryland or Pennsrl-
vnnia; aud it is not less necossary, on the principles of our Con-
stitution, that uniformity iu the imposition of impo«ta, duties,
and excises should be observed in the one than in the other.
Since, then, the power to lay and collect taxes, which inclndea
direet taxra, is obviously coextenaire with the power to lay and
collect dulieii, imposts, and excises, and since the latter extends
ihmu^Iiout the United States, it follons that the power to impose
direct taxes also extends throughout the United States.
§ 1000. '*The extent of tlic f^nmt being oaccrlaincd, how for is
it abridged by any part of tlie Constitution ? The twentieth sec-
tion of tJie first article declares tliut 'representatives and din<et
taxes shall be ap|)ortioned ainuug the se^-eral Slates which may
bo included within this Union, according to tJieir respective
nnrobors. '
§ lOOl. "The ohjoct of this regulation is, we think, to furnish
a standard by which taxes are to be apjwrtioned, not to exeni)
from their operation any part of our country. Uad the inU'ntioa"'
been to exempt from taxation thone who are not represt-'ntjed in
Congress, that intention would have been expressed in direct
terms. The power having bwen expressly granted, the e^- — ■ n ,
would have been expressly made. But a limitation can -
be said to be insinuated. The words used do not mean that di-
CB. XIT.J
P0WEK8 or CONOHBae — TAXB.
m
rect taxes sha!! be impocted nn State* only which are repre«entcd.
or Bhall be apportioned to repreaentativea, but that direct taza-
tioo, in itft application to States, shall be apportioned to nuni-
Ix-ra. Rcproflentation is not made the foundation of taitatioti.
If, under the rnameration of a represpntative for every HO,(MO
fiouls, (me 8tato haa been found to contain 59,000 and anotlier
60,000, the first would have been entitled to only one repre»enta-
tiix!, and thv last to twa l^eir taxes, however, would not
have been aa one to two, but as fifty-nine to sixty. This clause
was obriouBly not intended to create any exemption from taxa-
tion, or to mahe taxation dependent on representation, but to
furuinh a standard for the apportionment of each on the States.
§ 100*2. "The fourth parai^'apb of the ninth section of the
saino article will next be considered. It is in tlicse words: 'No
capitation, or other direct tax, shull be laid, unicss in pro|>ortioD
to the census or enumeration hcrcinlieforc directed to be taken.'
§ 1003. "The census rcfcmMl to is in that clause of the Con-
stitution which has just been considered, which makes uumbem
the standard by which both repro«cntatiT-i?« and direct taxes shall
be apportioned amon^ the HtatcA The actual enumeration is to
bo made 'within three yeurs after the first meeting uf the Con-
gress of the tr oiled ytates, and within every subsequent term o(
ten years, in snch manner as they sliall by law direct. '
§ 1004. "* As the direct and declared object of this census is
to furnish a standard by which *rcpreseutativeii and direct taxes
mny be ap[Kirti<>iK-d nmong the several States which may i>e in-
cluded within this Union,-' it will be admitted that (he omission
to extend it to the District or the Territories would not render it
dvfoclitT. The census referred to is admitted to l>e a census ex-
hibiting the numbers of the respective States. It cannot, hov-
erer, be admitted thut the argument which limits the application
of tlie power of direct taxation to the population contained in this
census is a just one. The language of the clause does not imply
this restricttoiL It is not, that *no capitatioD or other direct
tax shall be laid, unless on those comprehended within the cen-
sus hereinbefore directed to be taken,' but ^unless in proportion
to' that census. Now, this proportion may be applied to the
District op the Territories, If the enumeration be taken of the
population in the liistrict and the Territories on the same prin-
ciples on which the enumeration of the respective States is madet
784
COKliTlTDTION OP TUB UKtTHIl STATES. [itiMK ni-
thcin the information ia ac(|aired by which a direct tax may be
impoAod on tho District and Ttirritories, *■ in proportion to~ the
MnsiM or enumeratiun ' which the Ounstitution directs to be
taken.
$ 1005. "The standard, th«n, by which direct taxes most be
laid ifl applicable to this District, and will coublc CoiisrfBs to
apiwrtion on ita just and eqnul aharc of thi; burden vith tiio
same accuracy a« on the ruspectivo 8tatv«. 11 the tax be laid
In this proportion, it la witliin tho rery worda of th« mtrir-
tjon. It is a tax in proportion to the ceoatis or eaunwralJoa
pcffrred to.
§ 1000. '^ But tbo argument is presented in another form, in
whii':h its refutation is more difficult It is urged against this
confllruetion, that it would produce the necessity of extending
direct taxation to the Dintrict and Territoriea, which wonld not
only be inconvenient, but contrary to the understanding and
practice of the whole goremment If the power of imposing
direct taxes be coextensive with the United States, then it is
contended that Ihe restricti^-e clause, if applicable to the Dis-
trict and TcrritoriM, requires that the tax should be extended to
them, since to omit them would be to violate the rule ol
proportion.
§ lOOT. "We thin): a satisfactory answer to this argument
may bo drawn from a fair comparative view of tho different
clauses of tho Constit-ution which have l)ecn recited.
§ 10O8. " That the (jncucral grant of power to lay and collect
taxes is made in terms which comprehend the District and Dm
Territories, as well as the Slates, is, we think, incmiirovertibli
Tim subsequent clauses arc intended to regulate the exercise
this power, not to withdraw from it any portion of the commun-
ity. Tlie words in which those claunca arc exprewied intpor
this intention. In thus rct^uUtio" ita exercise, a rule is given^
in tiie second section of the first article for its application to
the respective States. Tliat rule declares how direct taxes iipam
the States shall ))e imposed. They ahull be apportioucd upon
the sevenl States according to their numbers. If, then, a di-
rect tax be laid at all, it must be laid on ever}' State, couformu-
bly to the mie provided in the Constitution. T- ' t
clearly no power to exempt ony State from its due
burden. But this regulation is expressly confined to ilie Sialo,
CB. ur.]
POWERS OP COHGBB86— TAXlBb
785
Kid creatM no nMeuity for extending (be Ux to tho District or
the l*errttorie8. The words of tlie iiintli section do not in terms
require tliat tho H.ratem of direct taxation, when resoried to, shall
be extended to the Territories, M the word* of the second seeliuti
require that it nhall be extended to all the States. I'hey there-
fore may, vitJiotit %-iolence, be understood to give a rule when
the TcrritorU* shall l>e taxed, without imponini; the necessity of
taxing Ihom. It could scarcely escape the membcra of the con>
vcnttuo that the expense of execatlng the lav in a Territory
might exceed tho amount of the tax. But, be this aa it may, the
doubt created by the wonlB of the ninth section relates to the
obli^nttion to apportion a direct tax on the Territories, as well
08 the HtatcA. rather than to the power to do sa
§ 1009. " If, then, the language of the ConAtitution bo con-
■bued to comprehend the Territories anil I>iMriet of Columbia
aa well aa tho Statea, that langiuise confers on Congress tho
power of taxing the District and Territories as well as the Htatca.
If tho genera) language of the Constitution should be conlined
to the States, still, the sixteenth parafrraph of tlie ciglith sec-
tion gives to Congress the power of exen;ising 'exclusive legisla-
tion in all eases whatsooTer within this District.'
§ IDIO. "On the extent of these terms, according to the com-
mon undemtanding of mankind, tliere can be no dilTcrcnoe of
opinion; but it is contended that they most be limited by that
great principle which was asserted in oar revolution, tliat rep-
resentation is inseparable from taxation. The difTi'reniN> be-
tween requiring a coatinent, with an JrameniM- population, to
submit to bo taxed by a government haring no common interest
with it, He[wriit«-d from it by a raat ocean, restrained by no
principle of Hp{Kirlionment, and associated with it by no com-
mon feelings, and permitting the repnwentati<>'es of the American
people, under the rrvtrictions of oor Constitution, to tax a part
of the societj' which ia either in a state of infancy advancing to
manhood, looking forward to complete equality as soon as that
state of manhood shall bo attained, as is the case with the Terri-
tories, or which has voluntarily relinquished tlio right of repra*
sontation, and has adopted the whole body of Congrejts for Its
legitimate government, as is the case with the District, is too
obvions not to present itself to the minds of all. Although in
theory it might be more congenial to the spirit of our instltu-
786
ooKSTrnmox op thb dkitbd stated [book in.
tioiw to admit a rcprcucntative from the DiBtrict, it njay be
doubted wh«t]ior, iu fact, its interests would be rondcrcd tltcrcbv
the morv Hccurc; oud certainly the CoiiittitDtioit cloc« not con-
sider it« waiit of a repreeeutatiTc in Congress as exempting it
from equal taxation.
§ 1011. "If it were true that, according to the spirit of our
Constitution, the power of taxation muat be limited by the right
of representation, whence is deri\-vd tlie ri^ht to lay and onllect
dutiea, impoHts, and excises witliiu this District? U the princi-
ples of lilierty and of our Constitution forbid the raisinjr of
revenue from those who are not rcpnwenled, do not these princi-
ples forbid the raising; it by duties, imposts, and excise*, us vrll
OS by a direct tax ? If the principles of otir revolulioo gi^'e a
rule applicable to this cn^c, wo cannot liarc for^tteu Uiat neither
the stamp act uor the duty on tea were direct taxes. Yet it is
admitted that the Constitution not only allows, but cnjoina,
Uic government to extend the ordinary revenue system to this
District
§ 1012. "If it tie said that the principle of oniformity estab-
lished in the Constitution secures the District from oppresaion
in the imposition of indirect taxes, it is not leaa tme that the
principle of apportionment, also established in tlio Constituticm,
Bccures the District from any oppressive excrciso of the power to
lay and collect direct taxes. "
§ 1013. The next clause in the Constitution is: "No tax or
dnty shall be laid on articles exported from any State, {a) Ha
preference shall be given by any regitlntion of commerce m- reve-
n«n to the porta of one State over those of another j (ft) nor shall
Teasels bound to or from one iit&ie be obliged to enter, clear,
or pay duties in another."
§ 1014. Tlie obvious object of these provisiona in to prevent
any poasibility of applying the power to lay tasea, or reguial
commerce, injarioualy to the interests of any one State, «o
to favor or aid another. If Congress were allowed to lay a duty
on exports from any one State, it miiilit unrcaEonably injure,
even destroy, the staple productions or common articlca of thn
{a} See IWpta ■. Bai^Mi, 117 V. S.
SM i Fmw t. BuigBH, » V. S. 373 ; Co*
a. Eml, list'. 8. SIT.
(»} 8m Gay n BdHnMm, 100 C. S.
4» i Wsodniff «. Ftabm, 8 Will. ISt i
Bimoo IT. Loll, 8 WJI. Its ; W«nl •!
Uuj]Md, \i W>U. 118 : Wtlt«ii *. M»
wari, tl C. 8. STS.
oa. xiT.]
COMQBISS — TAZES.
m
I
I
I
I
Stata' The ioequalit; at such a tax would Iw extreme. In
tome of the States the whole of their means ruiult from aic^calt-
nral exports. In others, a great portion is dtirivod from otb«r
sources; from cxtcrual TisheriGs, from freights, aod from th«
profits of comiQCrcu in its largest extent. The biirdeD of such
a tax would, of course, be rerj' unoqually distributed. The
power is, therefore, wholly taken away to intermeddle with the
subject of exports. On tlio other hand, prefercncen might be
given U> ihe ports of one Slate, bjr ref^lations either of commerce
or revenue, which might confer on them loeal faeilities or privi-
legos in regard to couimeree or revenue. And such preferences
might be equally fatal, if indirectly given under the milder form
of rcquiriag an entri*, clearanee, or payment of duties, in the
ports of any 8tat« other than the porta of the State to or from
which the vessel was bound. The last clause, therefore, does
not prohibit Coni;rc8s from requiring an entry or clcaranoe or
payment of duties, at the custom-house, on importations in any
port of a State to or from which the vessel is bound ; but cuts off
tbo right to require such acts to bo done in otlter States to which
the veaeol Is not bound.* In other worda, it cuU off the ]>ower
to require that circtiity of voyage which, under the British colo-
nial system, waa employed to interrupt the American commerce
before the Bevolution. Xo American vessel could tla-n trade
with Europe unless through a circuitous roy^e to and from a
British port'(a)
§ 1015. The first part of tlie clause wa» reported io tlte first
draft of the Constitution. But it did not pnss without oppoei-
ticm, and several attempts wore made to amend it, as by inserting
after the word " duty " tho words "for the purpose of revenue,"
and by inserting nt the end of it "nnless by con»ent of two-thirds
erf tho legislature," both of which propoeilions were negatu-ed.*
It then passed by a vote of seven States against four.* Subse-
■ 8a«I« m Um COMtiudoa, ch. 10, pp. 11B, 116.
■ Joiirn. of CoBVfntlM, 293, S01 ; 8«rB*ut on CdmL Law, eh. 3S, p. SM ; Unittd
Stttw (■ Brig WfllUm, 8 flitl't Uw Joani. SS5, 1S9, SSO ; Ihwh on Uia Conat <k.
in, Pl 114 : 1 ittknam't Corinji. 101 to IM. 111.
> BwTM c* ShlppioK, pp. 28. S8, IT, «9. 113 to 105 : 1t1. m. <»S. «93 ; Burica'l
8|w«ch on AaMricra Tutflon. is 1771 : I Pltk. HmL «lt. 1, pp. »I to 104. (»)
1> J<mm. or CMTanUon, S32, £79. * M. STB, XT*.
(■
110.
(a) Sm Aftiim •. Uuwdl, S BUldi.
110.
TOt, I. — IT
(0 8m Uorgu't B. Co. B. f ml^M.
ItStJ.&IM.
TS8
oosamvTios or the pnitbo states. [book m.
quentty Uic rcmaioiDg parts of th« clamo wcr« proposod by irport '
of a eommittoc, and th«y «ppeu- to have bocn aUopUsd witiioat
objection.' Upon tlie whole, the wisdom aii<l Kmind policy o£
this restriction caonot admit of reasooaUle doubt; iiot m> much
that th« powers of lh« general government were likcl; %o be
sbnaed, ns that the constitutional prohibition would alUj jeaI->
Olisiesand conrimiconfidoncc.' The prohibition extends DOtonlj
to expnrta, but to the exporter. Congress can no more right*
fully tax the one than the other.*
§ 1016. The next clause contains a prohibition on the States
for the like objects and purposes. "No State shall, vitiotU tig
consent «{/' Coit^res*, lay any imposts or duties on imfwrts or ex-
ports, except what may be absolutely necessary for executinj; ita
inspcctiun laws; and the net produoe uf all dutivs and imposts
laid by any Stat« on imports and exports shall bo for the use
of the treasury of the Uuitvd States; and all such laws shall l«
subject to tlic revision and control of Congress. No State shall,
without the consent of Congress, lay any boooage duty."(>i) Id
the first draft of the Constitution the clause stood, " No States
without the consent," etc, "shall lay imposts or dutii^ on im-
ports." I1ie clause was then amended by adding "or exports,"
not, bowcrer, without opposition, — six Status voting in the
offinnatire, and five in the ut^ive;* and again, by adding
> Jonnu «f CoovMtiaa, SU. SIS ; U. STT, 878.
> I Tuck. BIuIl Comm. Apfi. SS> 3SS ; Id. 29«.
* Brown r. IbiyUod. 13 Wbnt. K. «».
• Jtnira. of Con*«atioD, SS7, 303.
(a) Sm Maigan StcanuhipCfl. v. L<ra»-
bat, lis V. i. 4G3 : Hum n Olovcr, 110
U. & S4S : Keokuk Pwkpl Co. *. K»>-
kok, M V. B. 80 : Trmniportxtiaa Co. r
Pwk«nb<u» lo; U. SL 891 1 WkMlisg
TnmporMUui Co. r. Vr'hMling^ S8 U. 8.
273 i Kortk^nteni PMkat Co. ». Bt.
Lmii, IW V. S. its : Vkkitarg o. ToUn.
ik 430; SUt( Tonnigc Tu Cuo, IS
U'lll. 304, !3) ; r<ot> •. Ma(]{M. 10 Wall.
581 i Cannon c. Nmr Orlaat, 30 VtO.
571 ; Inniku fiMBiUp Co. p. Tinker, 04
U. 8. 138 : StcnMuM(> Co. *. WanUm^ *
Wall. St. Tiia Uricd spoa nttit
owmi hf \ht citiumanf the Suto a* !*»■
party, bued m th«ir vtlot m vnprttj,
m t. f. OK llirir tcoMgc, an not viiUs
lbs ootutltiitle«4l pnnitlnc. WbMting
Tmi>{>«rUt£sa Co. «. WbwUng, tm^n ;
Kmlnk PtekM Co. f. KcohMk, mpra.
Hie ptoridM itoM not mtma thai tW
owatn of wliam* in Mrl^Mc vab>n anr
not ilpmnii pay for th* nv n'' llw mm*.
Nortbvnteni hdtet Co. p. Bi. Itmk,
ntpm. Tht (tiatinetioa la buauui nnmd
To* tfM ue of firoferty ani! paynvBt lor
tha fiirlkp of rntcriiiB, rr— ialn|| tx, at
il«putin|i froM a port. tli. ; VkkabnK
r. ToUn, twpriL " Vhtttf^ " ounaL )■
demandnl for the ua» of lh> tiEdni|iri>n4
■liarc Ik FnnbfT m to the ipnetml m^
>ct, Bt 1 Hart, Ak. ConA La«. XSS,
3SL
CB, IIT.]
P0WEB8 OP 00KGBK88 — TAXKS.
739
"nor with Bach ooiusent, but for the use of the treaaurj of thfl
Unit<>d ^^tates," bj a vote of ntiiu States a^inst twa' In the
revised draft the ctau8« was reported as thus amended. The
clnose vat) then altered to its present shape br a votv of ten
SCat«8 Bi^inst one ; nnd tlie clause which n.'»{iei.'ts the duty on
tonnage was then added hf a rote of six Htales against four, one
bein^ <iiTided.' So that it »wms that a struggle for State pow-
ers w».< roni«lanllf maintain^, with zeal and pertinacity, through-
out tlie whole dittcussion. If there ia wisdom and sound policy
in restraining the United States from eserciaing the power of
taxation unequally in the States, there is, at least, et^nal wis-
dom and policy in restrainioK the States themselves from the
exercise of the same power injuriously to the interests of each
other. A petty warfare of regulation is thus prevented, which
would rouse resentments and create disscnsiotis, to the niin of
the hamioiiy and amity of the States. The power to enforce
their iiispeetion laws is still retained, subject to the revision and
control of Congres* ; so that anfheicnt provision is made for the
oonvenient arrangement of their domestic and internal trade,
whenever it is not injurious to tlio general interests.'
§ 1017. Insjiection taws arc not, strictly 8|H'nking. regula-
tions of commerce, thougli they may have a remote and considera-
ble influence on commerce, (a) The ol>ject of inspection laws Is
to intproTO the quality of articles produced by the labor of a
oountr}', to fit them for exportation or for domestic use. These
laws act upon the subject before it becomes an article of C(nn-
* Joam. c( Conreali(iii,303, SM.
* Joum. of CeDventko. U«i SSI\ SSI. See 2 AaMrioa Hownm. »t : Id. SM.
* Tb* I'fJmllM.Ko. It: 1 Tuck. BUck. f;oinm. App. ISl, 318. &«al«ol EUtofi
DtUCo^ 3S1 lu 356 ; Joam. of Coavralten, 2M, S95.
tioe HariM, for IW onrt, Mjrt t •■ A hw
(a) S«e ToiMT 9. MMfhnA. 107 V. 8.
SSi KMl>w*.Gara.SW<Mb,te7tN«w
T«rk p. C<anpttcai<! Qi»ifU. 107 V. S. G9;
UdiiIm'*. Ruiim. 13Str.8.<SS: uia mh
npfciall^ MinnmtH r. BtfliOT, 130 V. 3.
S13. on the diilinrtioa brtman in^Mctian
Uir*rnp>U<>nffnranierrc. On that duttnc-
tliw M« *Im itta*ni*l>i|i f'n. v. IVrt Wu-
>Un«^ « Wall. SI : Yaum r. Ko* Orbans
it 17. S. U« I GilDiui r. PIiitMi'lplib, S
WiIL TIS: Sr parit HcNmI. 13 W>1L
134 ; Pditenon e. Ktvttitkj. 67 V. S. Ml.
In MtaamaU d. B*ik<r, ttfta, Ur. Jut-
for th» Inipactiim of uiimab «l»o«e mcato
u« dcalf^nvd r«r liuinaa (txd cannot be (••
gsrfpd ai a ffghtful ratitton of tb* |n||c*
{xnrtn of tlu Stale, it th« IniptcUoB
pnambpl la of tneh a dsTKtoT, or h
Imnknol whh nuoti foadiUoiu^ a* will
prercat altcgcthrr lh« lotnKlartkai Inl4
lb* Stale «r aoand mtali, the pmloct oT
antNMli tU>ghl«mi kii othei Suto."
The motifs of tli* li^tlitain are Inn*-
tcrial. tb. ] Soon Uittg *. Crawl*;, 113
U.8.7l)S.
740
CON.1TtTUnON OP THR DKITHD 9IATE3. [bOOE III.
inerce, foreign or domefltic, and prepare it fgr the purpose. They
form a portion of that iminen»e mass of le^alatioa which em-
braces eTerj'tliing in the territory of a f^tate not surrendered to
the general goTemmeDt. Inspection lawn, (|uarantine laws, and
health lawa, as veil aa laws for regulating the internal comaieroe
of a State, and others which respect niadft, fences^ etc., ai« com-
ponent parts of State legislation, reaultinjr from the rcsidiuur
powers of State sovereignty. No direct power over tht-ac is given
to Gongreaa, and consequently they remain subject to State Icgia-
tatiott, though tlioy may l>e controlled by Coo^tcm when Ibey
interfere with their acknowledged powers. '(«) Under tiie ooo-
fodcration there was a provision that "no State shall lay any im-
posts or duties which may intorfero wLUi any stipuUtiooa of
twMios entered into by tlio ITnited States," etc Thin pro-
hibition was notoriously (as has been already stated) disregarded
by the States; and, in the cxerciHO by the States of their general
authority to lav imposts and dulies, it is equally notorious Uiat
the moat misohierous restraints, preferences, and inequalities
existed ; so that very serious irritations and feuds were eonstantly
generated, which ihruntened the peaco of tlie Union, and, indeed,
must have inevitably led to s dissolution <d tt* The power to
lay duties and imposts on imports and exports, and to lay a too-
nage duty, is doubtless properly coimidercd a ]mrt of the taxing
power, but it may also be applied as a regulation of commerce'
I 1018, Until a recent i>criod nodlfTtculty occurred in regard
to the prohibitions of tiiis clause Congress, with a juat liber-
ality, gave full efTect to the inspection laws of the States, and
required them to bo obserred by the revenue officers of the United
Statea.* In the year 1821, the State of Ifaryland psissod an act
requiring that all importers of foreign articles or commoditica,
etc, by bale or packnjjre, or of wine, ram, etc., and other
persons selling the same by wholesale, bale, or package, hogs-
head, barrel, or tierce, should, before they were authorized tn
t OtbbOM •. OxiUb. 9 Wh«>t. R. 1, «* to «M, SIO, aU, SM, 311 ) Bmn *. Uuj-
U^ IS WImM. B. 4lt>, 4SS, 49», MO.
■ Th* FaknUtt, Nml T, SI.
* OlbtiMM a. 0«^ B WbMt. B. 1, IM, 200b Ml ; BronK Uir;biid. ISW^ml
R. ««, HI.
* Act cf M ApriL 17M. oh. B; Act«f U Hucl^ 1»B, oh. 12>, } »
(a) Rtt Tnraar k. Mujlud, Hyps,
CH. nv.]
POWEBS OP COKOBBSS — TAXES.
741
Bell, take out a license, for which the^ were to pay _^ty dollora,
under certain penalties. Upon tliie act a question arow wbi'ther
it was or not a violation of th« ConMitulion of llie Uiiit^d States,
and capeciully uf the proliibitory clauite now under oondidera-
tiun. Upc)u Holcmn argument, the Supreme Court decided that
tt was.* The judfcntent of tlie Supreme Court, deli^xrod on that
occasion, oontaiiu a Tery full exposition of the whole tiuttject;
and although it is long, it »eem» diflicult to abridge it withovt
marring: the reaxoning, or in aome measure leaving imperfect a
moat important constitutional inquiry. It is, tlierefore, inserted
at lai^
5 1019. "The cause depends entirely on the qnestion whether
the legislature of a State can constitutionally require the im-
porter of foreign articles to take out a license from the State be-
fore he shall be permitted to sell a bale or package so imported.
It has Ifeen truly Buid Uiat the prcHiuuption is in favor of every
leKislativc act, and that tho whole burden of pn>of lies on Ihoee
who deny its constitutionality. The plaintiffs in error take the
burden on themselves, and insist that the act luidcr considera-
tion is repugnant to two provisiuits in the Constitution of the
United States. (1) To that which declarer that 'no State shall,
without the consent of Cougress, lay any imposts or duties on
imports or exports, cxeept what may be absolulety neecssnry for
execnting its inspection laws.' (2) To that which declares that
Congreaa shall have power ' to regulate ccnnmerce with foreign
nations, and among the soveml States, and with the Indian
tribes.'
$ 1020. ** 1. The first inquiry is into the extent of the prohi-
bition upon States *to lay any imposts or duties on imports or
exports.' Tlie counsel for the State of Maryliind would confine
this proliibition to laws impnaing duties on tlie act of importa-
tion or exportation. The counsel for the plaintiffi^ in errx^r giro
tlicm a ranch wider scope. In [lerforming Uie delicate and im-
portant duty of construing clauses in the Constitution of oar
eoimtry whirh involve conflicting powers of the government ol
the Hnion and of the respective States, it is projier to take a view
of the literal meaning of the words to bo expounded, of their
connection with otht-r words, and of the grneral objects to be
aooomplishcd by tho prohibitory clause or by the grant of power.
> BRi«iiKll«rrlud,1SWhMLB.Il»;Tlwr<*laaU(t,So.sn.
742
coNatiTirnox of the dnited states. [book i«.
What, thea, is the meaning of tbe words 'imposts or duties on
io^Mrts or exports * t An impost or daty on imports is a custom
or a tax leviwl on articles brought into a countrj-, and is most
usually etcured before the importer is allowi^ to exercitw his
rights of ownership over them, l>evaus« evasions of the taw can
be prevvnted more certainl)- by executing it while the articles
sre in its custody. It would not, liowuvcr, be less an impost or
duty on tho artick-s if it were to be levied oq them after they were
landed. The policy and eomiiH|ui.'ut practice of levying or secur-
ing tlie duty beforo or ou entering the port does not limit the
power to tliat state of things, nor, coiuiequently, the prohibition,
miloBS the true meaning of tLe clause so conlines iL What,
then, are 'imports'? Tbe lexicons inform us that thejr are
' things imported. * U we appeal to usage for the meunii^ uf the
word, we ^all receive the some answer. They are tho article*
themselves which arc brought into the country. *A duty uo im-
ports,' then, is not mei-ely a duty on the act of importation, but
is a duty on the thing imported. It is not, taken in its literal
aease, confined to a duty levied while the article is entering tlic
country, but extends to a duty levied after it has entered the coim-
trjr. The sucooeding words of tlie sentence which limit tbe
prohibition »how the extoiit in which it was understood. Tho
limitation is, 'except what niny be at^Aolutely necessary for exe-
cuting its inspection laws, '{a) Now tbe inspection laws, so far
as tltey act ujton articIr-H for exportation, are generally executed
on land beforo tJie arlicle is put on board the vessel ; so far as
they act cm importations they are generally executed upon arti-
cles which arc landed. The tax or duty of inspectinn. tlien, is a
tax which is frequently, if not always, paid for service per-
formed <m land while the article ta in the bosom of Qw country.
Yet tliis tux is an exception to the prohibition on the States to
lay duties on imports or exports. The exception was made be-
cause the tax would otherwise have been within the prohibition.
If it be a rule of interpretation to which all assent, that tJio ex-
ception of a particular thing from general words proves that, in
(a) Sm Iciif a Oaidin, US tl. S. lOO
(intodratl^ ll^Doni InpMled to W uU
lb. I«I I pot, I IQSI, noCn, rurthm- «m
Tuner r. Stato. SS Ud. 240 j Tmin ».
Hirjrlmd, 107 D. ft S8 i Jvlum Im
Ov bl A>idiwr-fl««»»I, 32 Mt:!.. (J-S
Brnnagim v. Tt1linit)i**>< )^ ^
Ouiiitm w. Tillmglinl, IL tOt ; ,.
ComL Um. ;91-;«6, Ut, fib «!.
CH. XIV.] POWEBS or C0NUBBS8 — TaZU. 74S
the opinitH) of the Uw^ver, th« thing excepted wwM be vithin
the gcnerol claiuie bad the exception not lieeo made, we know
no reason why this general rule should not )fe as ap))licable to
the Constitution as to other inatnimeiita. If it be applicable,
then this exception in t&vor of duties for the HUpport of inspcc-
tion laws goea far in prorinj; that the franters of tlie Cnn«titutioD
claas«d taxea of a iiimilar character with those impneed for the
porposce of tuttpeoiiun with duties on iiuporta and cxporta, and
supposed them to be prohibited.
§ 1021. "If we quit this yarrow riow of the subject and, pass-
ing from tlie litvrul iutcrprctatJon of the words, look to the ob-
jects of tJie prohibition, ve find no reason for withdrawing the
act under con«idenition from Its operation. Prom thv rant in-
equality bctw<.-en tlie dilTorcat States of ttiu coiifedcmcy as to
commercial advantages, few subjects were xHewcd with deeper
in(on-«t or excited more irritation than the manner iu which the
BcvL-ral States exercised, or seemed die|>osed to exercise, the
power of laying duties on imports. From motircs whicb wera
deemed sufficient by the statesmen of that day, tliu general power
t£ taxation, indispensably necessary as it was, and jealous as
the States were of any encroachment on it, was so far abridged
as to forbid them to touch imports or exports, with the single
exception which has t>ccn noticed. Why are tliey restrained from
imposing these duties ? Plainly because iu the general opinion
the interest of all would be best ppromoted by jdacing (hat whole
subject tmdcr tlie control of Congresa Whetlier tbe prtdiibition
to* lay imposts or duties on im]>ort8 or exports' proceeded from
an apprehension that the power might be so exercised as to dis-
turb that e<{uality among the States which was generally advan-
tageous, or tliat harmony between them which it waa desirable to
preserve; or to maintain unimpaired our commercial connections
with frtreijm nationg; or to confer this source of revenue on the
government of the Union; or whatever other motive might have
induced the prohibition, it ia plain that the object would be as
completely defeated by a power to tax the article in the hands of
the imiMirtor, the instant it was lauded, oa by a |M>wcr to tax it
while entering the port. There is no difference, in effect, tw-
twecn a power to prohibit the sale of im article and a power to
prohibit its introduction into the country. The one would tie a
necessary consequence of the otlior. No goods would be imported
744
cossmvnoH or the witwd mates. [bocs m.
if none ooald be sold. No object of nii^ description can be u>
oomplisbcd by lajing a duty on importatioD which may not be
acoomplislied with equal certainty by laying a duty on the thing,
imported in the hands of the importer. It is obnoua that the
saine power which imposett a light daty can impose a very besvj
one, one which amounts to a prohibition. Questions of pow^r
do not depend on the degree to which it may be esercLsed. If it
may be exercised at all, it must be exerciBod at the will of tboM
in whose hands it ia placed. If the tax may bo Icried in thia
form by a State, it may be lened to an extent which will dtdeat
the revenue by im)K)et, so far aa it is drawn from importolioos
into the particular State.
§ 1022. "We are told that such a wild and {rretjanat afavM ef
power \B not to be apprehended, and is not to bo taken into riew
wh^i diticu«sinf; its existence. All power may be abtuHNl; and
if the fear of ite abuse is to constitute an argument against Its
existence, it might be urged againat thu existence uf thatwhkih
is univcnuilly acknowlodgfd, and which is indispeosable to tbft
genoral ttafcty. The State's will never be so msd as to destroy
their own commerce or even to lessen it We do not dissent
from Uicse general propositionB. We do not suppose any State
would act so unwisely. But we do not place the (juration on
that ground, lliese arguments apply with precisely the same
force against the whole prohibition. It might, with the sama
reasoD, be said that no Statu would be so blind to its own
interests as to lay duties on importation which would either pro-
hibit or diminish its trade. Yet the framcra of our OonBtilntion
have thought this a power which no State ougiit to exercise.
Conceding, to the full extent which is required, tliat every State
would, in ita legislation on this subject, provide juiiiciously ter
its own interests, it cannot be oonceded that each would respeet
the interests of others. A duty on importa is a tax on the arti-
cle, which is paid by the conaumer. 'Vhe great importing States
would thus levy a tax on the non-importing States, which would
not be less a tax became their interest would afford ample seear-
ity against its ever being so heavy as to expel commercn from
their ports. This would necvsaarily produce counterruiling
neasorcs on the part of those States wboee situation was leia
(arorable to importation. For this, among oth^r reaan», Hm
whole power of laying duties on imports was, with a ningte and
CB. xir.]
rOWEHS OF CONGBEBB — TAXES.
745
Alight exocptioD, takon from tho Stat«s. When ire ar« inqair-
ing wbother m |)articu]ar Mt is n4thin this prohibition, tho que«-
tiou is nut wbotfacr tho State may so leginl&to on to hart ttnolf,
but whether tho act is within tlie n-onLi iiud mischief of tho pro-
hibitory clause. It has already bocu ahown that a. tax on the
article in the hands of the importer ia within its words, and we
think it too clear for controversy that the some tnx is within its
mischief. We think it noquestionable that suvh a tax hus pre-
cisely the BAme tendency to enhnnco the price of the urticlo as if
impn(K>d upon it white eutering t)v) port.
§ i02a. "Tito coumiel for the 8Ute of Maryland insist with
great reason that, if the words of the proliibitlou bo token (n
their uhmwt latitude-, they will abridge the power of taxation,
which all admit to be essential to tlie States, to an extent which
has never yet been suspected, and will deprive them of rcsooroM
which are neccoaary to Bopply revenue, and which they have
heretofore been admitted to poascBfl. These words must, there-
fore, be construed with some limitation; and, if this be ad-
mitted, they insist that cnterinR the country is the point of time
when tho pruhibitiun ccamii and the power of tho State to tax
oommenoe*. It may be conceded that the words of the prohibi-
tion ought not to be pressed to their utmost extent ; that in our
complex nystem the object of tho powers conferred on tho ^vem-
ment of th« Union, and the nature of tho often conllictiu); powers
which remain in the States, must alwa\-s bo taken into view, and
may aid in ex[>ounding the wonlu of any particular clause. But
while we admit that sound principles of oonstnictJon ought to
restrain all courts from carrying; tho words of the prohibition be-
yond the ubie<:t which the Constitution is intended to secure., that
titere must be a point of time when the prohibition ceases and
tho power of tlie State to tax commeDcea, we cannot admit tliat
this point of time is the instant that tho articles enter the coun-
try. It is, we think, ol)vioiis tiiat this construction would defeat
tlte prohibition.
I 1024. "The constitutional prohibition on the States to lay
a duty on imports, a proliibition which a vast majwrity of them
must feel an interest in prcsenini^, may certainly comu in con-
flict with their acknowlodRvd power to tax persons and property
within their territory. The power and the rvstriotiim ou it,
though quit« distjnguiahable when they do not approach eteh
I
746
COK&TITUnON or THE OKITRO STATES. [BOOK m.
other, may jet> like Uio interroning colors between vbite and
black, appnmcb ao ncarljr aa to peiplex thii undenrtamling, as
colorB pc-r{fl(;s the vision iu murkiDff the distinction between
thcju. Yet tliu diaiinctioa esiHttt, and must be murkvd aa tbc
otaea ariao. Till they do ariao, it mi^ht bo promBtarc to state
any rule na being uuiveranl in itti application. Il i» auffioient
for tho prettcnt to say, generally, that vhcu tho iiujwrtcr baa ao
acted upon the thing imported that it lias become )acorporat«d
and mixed up with the inaas of property in tlie country, it has,
perha})^ lo8t ita distinctive character as an import, and haa be-
come subject to the tiixing power of tlie State. But while re-
maining the property of the importer in his warehouse:, in the
original form or package in which it was imported, a tas upna K
18 too plainly a duty on imports to oacapc Lbv prohibition in the
Constitution.
§ 10^ "The ooonaet for the ptaintifTa in error coniend that
the importer purchaaes, by payment of the duty to the L'ulei
State*, a right to diapoae of bis merchandise, aa well aa lo being
it into the country ; and certainly the argument U sappottcd iff
8tr<mg reaaon, as well as by the practice nf natiooa, ineladiag
our own. Tlte object of importation ia tale; it coostitvlea the
nkotire for payini; the duties; and if the United Statu pammt
■tiM power of cHiferring the rigiit to svU aa the eauMtntivm tar
nrtiich the doty ts paid, ererj principle of Cair dealing rvq^ai
that they ahould be understood to confer iL The pnedee ef
the moat oommcrcial nationa conforms to this idea. Oataa%
aooording to that practice, are charged oa dxae artieka «Bly
which am intended fur sale or i oiiiminpliiai in the
Thut aca etores, goods iiapurted and reexported ta the «
TBwel, goods landed and carried orerland br tha ptfp—a td
tag n^xptyrtvi fnm aome otl»er port, goods ioreed ia b* :
xt weather and landed, hot Dot for aala, an
p^aeot of dntiea. tie whole eovrae mf IrgialaHnn oa Ik w^
jeet sbowa that, in the opinion of the lepdalaie, Ae ng^ •» acU
is cooiiecigd with tiw payiaeat of datia.
$]<»&. •" The eouBMlfM- the MeaiMitta error haw
ored to itbutiate their pupuaition thai the e
bitian eeasM the instant tha fDods cater the coaurc. br •■
<f theceaaeqwnoswUch t^sD|ipne IBM
«fit. Utheianarttfaoaaiistheri^ tosrii fc?!
CH. XIT.J
povaa OP ooKGHOii^ — taxes.
74T
of datira, ho may, they ewy, exert tbat right when, where, and
A8 he pli^Hc-a, and the State cannot regulate it Ue may »cli by
rotuil, at uuctiun, or ae an itinerant podler. He may introd))oe
orlielcit. oa fiunpowder, which endanger a city, into the mid»t of
its population; be may introduce articlea which endanger the
public health, and the power of aelf-preeervation is denied. An
iin)>ortor may brin^ iu i^ooda, ua plate, for hia own use, and thus
retain much vnluublo properly exempt from taxation.
§ 1027. "Thc*o ohjcctiona to the principle, if well founded,
miuld certainly )>c ontitted to Herioua couaiduration. Hut we
think they will be fuimd un examiiiattuu nut tu belong UDceana-
rily to the principle, and conseqnently not to proi.-e that it may
not be reBortod t» vUh mafcty aa a criterion by which to measure
the extent of tlie prohibition. Thia indictment ia against the
importer for selling a package of dry goods in the form in which
it was imparted without n lidt-nso. Thia state uf things is changed
if he sells them or otherwise mixes tliem with the general prop-
er^ of the Imitate by breaking np his packages and travelling with
them as an itinerant pedler. In Utc first ease, the tax intercepts
ihe impart ns an import in its way to become incorporated with
the general mass of property, and denies It the privilege of )m>
coming so incorporated uutil it shall have contributed to the
revenue of the State. It denies to the importer (lie right of
using the privilege which he has purchased from the United
8t«t«« until he shall have also purchased it from tJie State. In
the Inst vase the tax finds the article already incorporated with
the moss of properly by the act of tlie importer. Ue has used the
)>rii-ilcge he hod purchased, and haa himself mi.\ed them up with
the common mass, and the law may treat them as it finds them.
The same olHMir vat ions apply to plate or otlicr furniture iwed by
the importer. So, if he sells by auction. Auctioneers are per-
aons licensed by the State, and if the Importer chooses to employ
them be can as little object to paying lor this service as for any
other for which he may apply to an officer of the State. The
right of sale may very well be annexed to importation without
annexing to it also the privilege of using the oflioors licensed by
Uie State to make salea in a peculiar way. The power to direct
the removal of gunpowder is a branch of the police power, which
unquestionably remains and ought to remain with the States. If
the pofloeasor stores it himself out of town, the removal cannot
748
OONSITTDTION OP THE UNITBD fftXTES. [BOOK ID.
be a dutj* oa importi), becanso it contributeB nothiug to the re^
enu«. If he prufun placing it in a public magatinc, it in bocaun
be storos it there iii h'm uwa opinion muru ndvnnta^otuly than
eUcwhiinc. Wc ore not sure that this may not bu olaitscd among
inapc-ction lawB. Tbo reioova] or dvatruotiuD (d infuctioua or
uoKuund articles is undoubtedly an cKerciKe of that power, and
forma an express cxocpUon to the prohibition wo are couaidvrtnK.
Indeed, thv laws of the United States expmsuly saovtioa the
health laws of a State.
§ 1028. "I'he principle, then, for which the plaintiffs in error
contend, that the importer acquires a right, not only to bring
the articles into the country, but to mix tliera with the common
mass of property, does not interfere with the nocesaary power of
taxation, which is acknowledged to reside in the States, to that
dangerous extent wtiidi the coimsel for the defendants iu error
seem to a|>prehcnd. It carries t4)e prohibition in the Constitu-
tion no fnrlhor than to prevent the Hlati?« from doing that which
it was the great object of the Constitution to prevent.
§ 1029. " Kut if it ahcHiId be proved tiiat a duty on the articls
itself would be repu^fnaut to the Constitution, it is still argued
that tills is not a tax upon the artiote, but on the person, Tbs
State, it is Raid, may tax occupations, and this is nothing mora;
It is imposiiiblo to conceal from ountelveii that tliis is varying tbo
form without varying the sutwitonce. It is treating a prt^ibitlcn
which is general as if it were conlincd to a particular mods ol
doing the forbidden thing. All must perceive that a tax on the
Bate of an article imported only for sale is a tax on the article
itaelf. It is true, the Stat« may tax oeciipations generally; but
this tax must be paid by thuBC who employ tlio individual, or is
a tax on his business. Th« lawyer, the pht-aician, or the tne-
chanic must cither cliargo more on the article in which he deals,
or the thing itself is taxed throuirh his person. This the State
has a right to do, because no constitutional probibiti<m extends
to it. So a tax on the occupation of an importer is, in tike man-
ner, a tax on importation. It must add to the price of the
article, and be paid by the oousmner, or by the importer him-
self, in like manner as a direct duty on tlie article itself would
he made. Tliis the State has not a right to do, because it is
prohibited by the Constitution,
5 1030. " In support of tiie argument that tlie pmhibitiiiQ
CH. IIT.]
rovEss or conoresb — taxes.
T^
^
I
eeasee the instant the goodn are broaght into tJi« ouuntiy, a com-
pwisuti baa been drawn between the oppotiitu wurdft, export uid
import. As to export, it \a auid, tn«aDB otUy to t»rry gooda out
of tb« country; bo, to import mcaoi* only to briug Lbcm into it.
But, suppose wc oxtvnd this comparison to the two probibitions.
Thti States an) forbidden to lay a duty on exports, and the United
^states are forbidden to Inj a tax or duty ou articles exported
from any ijtutft. There is some diversity in languiLgc, but none
is perceivable in the net which is prohibited. The United States
have the some right to tax occupations whieh is possessed by the
States. Now, eupjKise Uie United States should require overy
exporter to take out a license, for which he should pay such tAX
u Congreiiii might think proper to impoAe; would the govern-
ment W. [icniiitu^d to shield itself from tlie just censure to which
this attempt to evade the prohibitions of the Constitution would
expose it, by saying that this was a tax on thn peroon, not on tlie
article) and that the leginlatur^ had a right to tax occupationa ?
Or, suppoac revenue cutters were to be stationed off the coast for
the purpose of levying a duty on all mcrcbandiHo found in vessels
which were leaving the United States for foreign countries;
would it be received m an excuao for tliis outrage, were the g)0T«
emnient (o say that exportation meant no more than carrj'ing
goods out of the country, and as the prohibition to lay a tax on
imports, or tilings imported, ceased the instant they wore brought
into the country, so the prohibition to tax articles exported
ceaaed when they were carried out of the country ?
% 1031. " Wo think, then, that the act under which the plain-
tiffs in error were indicted is repugnant to that article of the
Constitution which declares that 'no State sbuU lay any impost
or duties on imports or exports. ' " (a)
(■) That the fanBiMfi^MMnpli)^
ia Uw cUbm of tfaa Conttitubon undsr
•xmlBUkiD, docB Mot nfec U> ut*d«« i<n-
poTtod (ram ana fUstc tnto aiMtlio, bat
oaljr to ulirW intportnl Dnn ror«iga
conntiiM [nloIb^ UnilrJ SUIm,m« Wood-
rat •. ruhnia. e Wall. ISS : Hiawa v.
Loit, Id. lis : Brawn v. HMUtan. lU
AlaxonMka by w ■ucihwwr U « ux
on tlw goMb nM ; ud wban apfUtd M
good* Iten wttitont Ik* csmtty, aoU tn
Um original |iadcagM «f ihi Ltnp«rur, ba-
fan thcf have bee««iw fncorpwatad into
til* (MMtal property of tba ncnatry, tka
law Ispiriag llio lax la redd •* lafinf ■
doly on ltnp«ata. Cook t. Pcnnajilraaia,
B7 Oltot SM. Tbu icooiU )iB|»rte<l ftaa
fordsn OMUilriM, alUc tniim bnti aaU
b; Um inpartic, an rabjcct tu Slat* tas-
atkin, avM tbonigk tfiU in Iba oalginat
{■wkagM, aaa Ponnr w. CMntnonwaaJtl^
7B0
coNsrmmoN of the united states. [^book in.
$ 1082. Aft the power of taxation exists in Utc States concur-
rently with the United States, subject only to the rcxtrictic
impoAcrl by tlie Constitution, several quostiuiui have from tit
to time ariaen in regard to the naturv and extent of tho St
power of taxation.
§ lORll. In tli« year 1818, the State of Maryland pa88«(l an
a<;t, laying a tax on nil banks and branches thereof not chartcrred
by the li^slature of that Htate ; and a question was made wlk^ther
the i>tat« had a right, under that act, to lay a tax on the Branch
Bank of the United States in that State. This gave rise to a
moat animated discuasioQ in the Supreme Court of the United
Stales, where it was finally decided that the tax was, aa to tb»i
Bank of the United Statco, anconstitutionaL'{a) The reaBOiuiig
of tlie Supreme Court on thia subject was as follows: —
§ 1034. " Whether the State of Maryland mar, without riolat-
ing the Constitution, tax that branch t That the power of taxa-
tion is ono of vital importance; that it is retained by the States;
that ft is not abridged by the grant of a similar power to the
government of the Union; that it is to be concurrently exercised
by the two governments, — are tntths which have never be«it'
denied. Bub auch is the paramount character of the Oonstltn*
tion, that its capacity to withdraw any subject from the action of
ewn this power is admitted. The Stat4>fl are exprmaly forbidden
to lay any duties on imports or exports, except what may be abfto-
lutcly nweiwary for t'xecuting their inspection laws. If the obli-
gation of this prohibition must i>e conceded; if it may restrain *
State from the exercise « its taxing power on imports and «x*
ports ; the same paramotmt character wmild seem to restrain, as
it certainly may restrain, a State from such other exercise of
this power as is In il« nature Incompatible with and repugnant to
the oonstittitionat laws of the Union. A law absolutely repug-
nant to auotlier as entirely repeals tlial other as if oxpress terms
of repeal were used.
§ 10S5. " On this ground tho counsel for the bank place its
> M'C«llock e. 8ui« of Hatrkaj, i VThMt. a S16 ; 1 E«iit'i Ohbb. Lml 1«^
p. 39S ; Id. <01.
G WilL 47»: Wkrins v. Tl» llayor, S Vvm V«A »i OamnfBU (M««m)t, W
W*II. no. t'. S. S».
Tha term "inpoite or •(porta" re- (aj See t Huv, Am. Conu. !«*, US
fm t« praptftf, not to lieekiinuDbdag*. Mif.
P0WEB8 OF COXORESS — TAXEB.
751
claim to be exempted from the power of a Stitto to tax \Ut operm-
tinns. Tlierc \» no oxprcMs proviition for the cane; hut tlie claim
hag been siistaimx) ou a priuciple which m entirely pervades tbo
Coiuttitiitioii, ig 80 intermixed witJi the iimtcriuls which compose
if, fui iiit«rwoveii with its weh, so tjlvudiyl with ita texture, as to
l>e incapahie of being separated from it vitboot rending it into
nhredg. Thig great principle is that the Conatitiition and the
law8 made in pursuance thereof arc supreme; that they eontrol
I the conalitution and laws of tltc respective States, and cannot be
controlled by them. I-Voin this, which may be almost termed
on axiom, other propositions arc deduced aa corollaries, on the
troth or error of which, and on tlicir application to this case, the
caune has been snpi^osed to depend. Theee are, 1st. Tliat a
^wcr to create implies a power to preserve. 2d. That a power to
ay, if wielded by n different hand, is hostile to and ineoni-
le with the powers to create and to preserve. 8d. That
[where this repugnancy exists, (hat authority which is supreme
moat control, not yield to tliat over which it is Buprcme. These
propositiong, as abstract trutlis, would perhaps never he contro*
verted. Their application to this catw, howerer, has been de-
nied; and, iKith in mahitnining the affirmative and the netrative,
H a splendor of eloquence and strength of argument, seldom if ever
sorpamiid, have lioen displayed.
§ 1036. "The power of Congress to crcato. and of course to
f continue, the l>ank, was the subject of the preceding part of this
opinion, and is no longer to be considered as questioQablc.
1'^at the power of taxing it by the Stati.> may be exercised so as
to destroy it, is too obvious to l>e denied. But taxation is said
■ to be an abaolitto power, which acknowledjrcs no other limits
than thoflG expresmly prescribed in the Constitution, and, like
sovereign power of every other doscrtption, is trusted to tlic dis-
cretion of thoAe who use it But the very terms of this ni^iment
t adroit that the sovereignty of the State, in the article of taxation
llSiilf, is sulMrdinate to and may be controlled by the Constitu-
tion of the United States. How far it has l>wn controlled by
(hat hislniment must be a question of constiuction. In making
this const nietion, no principle, not declared, can be adiaisaible
which would defeat the legitimate operations of a supremo gov-
emmeut It is of the very essence of supremacy to remove all
obstacles to its action within its owo sphere, and so to modify
752
COWSTITUTION OP TRE IWITKD BTiTES. [BOOK lU.
every power v««tecl tn nubordinate govenUDCnto as to exempt its
own operaticma from their own influence Titis cfTect aaod not
be stated in terms. It is bo involved in the declaration or sn-
premacy, so necesnarily implied in it, that the exprewion of it
could not make it more certain. We must, therefore, keep il in
riev while construing; the Constitution.
§ 10S7. "The arpmient, on the part of the State of Maryland,
is, not that the States may directly reniat a law of Oongrew, but
that they may exercise their acknowledged powers U|M>n it, and
that the Constitution leaves tliem this right in the confidence
that thoy will not abuse it. Before we proceed to examiue this
argument, and to aubjcct it to the test of the Cnnstitution, we
must bo jwrmittcd to bestow u few considerations on the nature
and extent of this original right of taxation, which is acknowl-
edged to remain with tho States. It is admitted that the power
of taxing the pi-oplu and thoir proper^ is essential to the very
oxistonce of go\-cmmcnt, and may bo Intimately exercised on
tJie objects to which it is applicable to the ntmost extent to
which the government may choose to carry it. (a) The only se-
curity against the abuse of this power is foond in the striicture
of the government itscll In imposing a tax, the legialatnnt
acta u|>on its constituents. This is in general a sufBeieut secu-
rity against erroneous and oppressive taxation. The peo{iIe of a
8tat«, therefore, give to their govomment a right of taxing them-
selves and their pro|>erty; and us the exigencies (4 government
cannot be limited, they prescrilNi no limits to the exercise of tills
right, resting confidently on the interest of tJie legislator, and
on the influence of the oonstitucnis over their representative, to
guard them against its abuse;. Uiit tho means employed by the
govcrnaient of tho Union have no such security ; nor is the right of
a State to tax them sustained by the same theory. Thoso means
are not given by the people of a port icular Slate ; not given hy
the constituents of the legislature, which claim the right to tax
them; but by the people of all the Statos. They are given by
all, for the benefit of all; and upon tlieory should be aubjoctcd
to that government only which beloi^ to alL
5 10S8. " It may be objected to this delinition, that tho power
of taxation is not confined to the people and property of a .State.
(a) 8m Kinhad v. Hotcbktnv 100 t7. 8- tn ; Bute Tu oc ron<>ii Boink II
WtlLSO*.
POVEBB OP CONGRESS — TAXB9.
708
I
It may be exercised npon every object brought within it« juris-
diction. This is tnie. iJut to what source do we truce this
right ? It is obvious that it is an incident of sovcrpi^ly, and is
coextensive with that to which it is an incident. All subjects
over which the novereign power of a State extends are objects of
ttion ; but thone over which it doos not extend are, ujion the
'nundest principlea, exem|>t from taxation. This proposition
may almout bo pronounced aoU-oTident. The sovereignty of a
State extends to cverylbinK which exists by its own auUiority or
h introduced by its permission; but does it extend to those
means which are employed by Congress to carry into exe^ulion
powers conferred on that body by the people of the United
States ? We think it demonstrable that it docs not Thoee
powers arc not gi^xn by tht- i)coj»1l' of a single State. They are
given l>y the people of the United States to a government whose
taws, made En pursuance of the Conittilutiou, urv declared to lie
supreme. Conswiuently, the iieoplc of a sinf^Ie State cannot
confer a sorcrcignty which will extend over thcnj.
§ 1089. '^If wc mcaatirc the ]*ower of taxation residing in a
State by the extent of sovereignty which the people of u single
State possess and can confer on its go\-onuncnt, we hare an in-
telligible standard, applicable to every case to which (he power
may be applied. We have a principle which loaves the power of
taxing the people and property of a State unimpaired; which
leaves to a State the command of all its res4>iii-ces ; and which
places beyond its reach all those jmwers which are conferred by
the people of the United States on the government of the Union,
and all thuse me-umi which are given for tlie pnrjMMie of carrying
those pi>wcrs into e.teciition. Wo hare a principle which is safe
for the States and safe for the Union. We are relieved, as we
ought to be, from clashing sovereignty, from interfering powers,
from a repugnancy between a right in one government to pull
down what there is an acknowledged right in another to Ituild up,
from the incompatibility of a right in one go\-emment to destroy
what there is a right in another to preserve. Wo are not driven
to the fterjilexiug im|uiry, so unfit fur the judicial department,
what degree of taxation is the legitimate use, and what degree
may amount to the abuse of tlie power. The attempt to use ft
on the means employed by the government of the Union, in pur-
suance of the Constitution, is itself an abuse, because it Is tho
VOL. I. ~ 18
1M
CONSTITUTION OP TBr WKTItD 8TA.TfB.
nsnrpation of a power which the pc«pl« a( « single State
pre.
§ IWO, ** We find, then, on jrot theorr, » total failure of
oriinnal rii;ht to lax the meaas emplored bj Uio fiovcrninetA'
th« Caion for the escecntian of its powen. The riKlil new*
istvd ; and the fincstion whether it has been surrunderod
sri«e.
§ 1041. ^ But, waivinj; this thcorr for the present, let as (*-
nnw tho inqnirr, whrth^r this powttr can be exercised bj Ai
re8pectn-« Statvs oanaist«nt^ with a fair ounatruction of Ai
CoDsHitutioQ. That the power to tax iavoh-<>« the [towor U>4^
stroT ; that the power to deatror mav defeat aod render latln
the [tover tn create; (a) that then is a plain rcpngnanco iDfls-
ferring ou one ^Temmeet a power to control the ooiuititiittW^
meBsuTvs of another, which other, with re^ieet to tlic«e nq
measures, is decIaTMl to be sapreme over that which exerts tl>
control, are propoailions not to lie denied. But all incitttf!«t>«-
civs are to bo Reonciled by the omm^o of the word fcMit' ^ '
Taxation, it is said, does aat »twi— rily and iinitv..iJjil'
dMtny. To carry it to Om exoess of dixtmctiuQ woiiM U
lAwae^ to pRsmne which would banUh that oaugdennc wbirJ
WBBtial to all government. But is this s case of ctmfid
Weald tbs people of any one Stale Irwst those of anotiifr witl
power to control tlh> most iasignificant operations of thflr 8i
goreniBwatT We know they would not. Why, then, A<
we snppoM that the people of any one State would be wilUa^
trust those of another with a power to eontrol the o)*cratiiiitj di
goremmcnt to which they have ooofided their moat itu
and moat raloable intenwts f In te legiatatam of the' Vn\
aktm ate all represented. Tht le^stalue of the L'niMi ali
therefore, can be tnsted by the people with the power of
ttellti^ measures whkh coaeem all, in the ooofiiiette^ that;
will not be abused. TUa, then, is not a case ai oonffdcn
we most ooDsider it as it rmlly is.
§ 104± - If we apply the prindpla for which uie £
HtSL US. ta «UA amtM
MWEB8 OP COXCREfiS — TJlXES.
755
[arfland contonds to the Coastitaticm generally, we shall find
^t capable of chat^Qg totally the character of that inatrumcnt
^e 9h.ill Rnd it capable of airtmting all the meaHurea of the gov-
itment, and of prostrating it at the foot of the Htatea. The
Lmericiui people have declared their CoDatitution, aiid tlic lawn
Imade in puraoance thereof, to bo aupremc; but thin principle
Ivould transfer the Rupremacy, in fact, to the Statca. If the
IStatea may tax one inxtniment employed by the goremment in
[the execution of its powers, they may tax any and orery other in-
[Btmnient They may tax tbu mail, they may tax the mint, they
ay tux patent righta, tlioy may tax the pa}M.>r8 of the custom-
louse, thoy may tax judicial prooees, they may tax all the meana
[empluyi'il by tbe government, to an exccBa which would defeat
lall thu ends of govvnimcnt. Thia wan not intended by the
terican people. They did not dusign to make their fcorem-
ttrwnt dependent on tlio States. Gentlemen Bay they do not elaim
the right to extend State taxation to tliesc objeelH. lliey limit
[their pretcnHlons to property. But on what principle is thia dis-
tinction made? Ttiiwe who make it have furnii^hed no reason
Lfor it, and the principle for which they ciintcnd denies it. They
■contend that the power of taxation hoa no other limit than ii
~ found in the tenth section of tho firat article of the Cunslilution;
that, with reapect to everything else, the power of the Stati-a ia
leuprcme, and admita of no control If this be true, the distinc-
i ' '
■ eaprcn
■tion between property and other gubjects to which Ihe power of
BteatiiHi la applicable, is merely ar)>itrary, and can never be
^PJHtdned. This is not all. If the controlling power of the
Siatea bo eatablinbed, if their snprenuicy, aa to taxation, be ac-
knowledged, what is to restrain their exercising this control in
any shape they may pleaae to give it? Their sovereignty ia not
confined to taxation. This ia not the only mode in which it
might be displayed. The question is, in tnith, a question of
anpremacy : and if the right of the Stales to tax the means em-
ployed by tbe general government be conceded, tho declaration,
tliat the Constitution, and the laws made In pursuanoo thereof,
I shall bo Oie supreme law uf the laud is empty and unmeamni;
■declamation. "
V § 104S. "It has also been inHJHted that, as the power of taxa-
Vlion in the general and Htute guvernmeiits is acknowledged to bo
concurrent, every argument which would suatuin the right of the
TS6
cossTmrnoN op thb ohitkd niTEi. [book m.
general govcmraent to tax b«uks chartered by the States wiJI
equally sustain the right of the States to tax banks chartered by
the ^nersl government But the two cases are not on the aamc
reason. The people of all the fJtsles have created thw gL-tiL-nil
government, and have conferred upon it the general power of
taxation. 'I'he people of all the ^tate», and (he .States tliem-
seli'es, are represented in Congress, ami, hy tlieir represeii-
tativea, exercise this power. When they tax the chartered
institutions of the States, they tax their constiluentw ; and the«e
taxes must lie iinif'jnn. But when a State taxea the oiteratinns
of the government of the United Statea, it acta upon iiuititutioBB
created, not by their own constituents, but by people over whom
they claim no control. It acts upon the measures of a govern-
ment created by others as well as themselves, for the benefit of
others in common with tlipiaselves. ThndifFcrenoo ia that wbidi
always exists and always must exist between the aoliun u( the
whole on a part and the action of a part on the wIh>1c ; between
the laws of a government <li<clared to be supreme and tbutu.'^ of a
government which, when in opposition to tliose laws, is not bm-
preme. But if the full application of tliis argument could bo
admitted, it might bring into question the right of Cnngre«s to
tax the Htatc l>anka, and could not prove the right of the States
to tax the Bank of the United States.
§ 1044 "The Court has bestowed <hi this subject Jte most
deliberate consideration. The result is a conviction that the
Stales have no power, by taxation or otherwise, to rvt«r(l, im-
pede, burden, or in any manner control, tlw operations of tb«
coDBtitntional laws enacted by Congress to carry into cxeciitinn
tlic powers vcBti^d in the general guvt-mmcnt. Tliis is, wc tliink,
the unavoidable oonsequenco of that supremacy which the
Constitution has dcelured. Wo are unanimously of opinion
that the law possod by the legislature of Maryland, imiMwing
a tax on Uie Bank of the United States, is unconatihitioual and
void."*
§ X045. In another case the question was rai»cd whether a
State had a constitutional authority to tax stock Issued for hMUis
to the United Statea; and it was held by the Supreme Court that
I The Aoetrimt wo ai^u le^XMninrf hj lh« (lni«eiiiBC«Ort in » UWr (Mr, uid d*.
Ub>i>l«ly ««anii«l. OAon ». B.nk ot thr VtittA StUw « Whort. R- JW, 8M to
8S9 ; 1 Kant't Owin. LacL 13, pp. 331 to 3».
CB. XIT.]
P0WK8S or COXQBESS — TAXES.
767
a State had not' (a) The reaaoning of the Conrt was as follows;
*'Is the stock, isaued for loans made to the goremioent of the
United States , liable to be taxed by States and corporations ?
Congress has {>owor Mo borrow money on the credit of the
United States. ' llio stock it issues is the evidence of a debt
1 WMton r. The City Council cfCbwiMtoa, 3 F<ton'iS. MB, ptr Ur. CUrfJiutiM
I
((■) Srt Bfltik uf CoBinciM ^ Kmr
Toik. S Block, esb : Uuik Tmx Cue, 2
Wkll. SOO; Tha lUnk v. Tb* Ma^or. 7
WkU. Ifl 1 Bsuk «. Tb* SujifrriMin, 7
WoU. 28.
Tbo g«n<<nJ |)r!ii«ipl« dwknd in
U'Oulloch t. Muylauil wm agun kpfJied
In DoLbiii* V. Eria Co.. IS Ptt. 44$. It
VM Uwrn b«Iil ikat > Stai* «oulil not levy
a tu npoD Um conqntinUao *Uow«d bj
du United Stale* to one of ila oKcan,
vhkb ooanptMatlaui it U to bs nniTDMl,
«H iM mora than th« mtvIom wew worth,
■nd M> mors thutt wooM be aufficient to
•Mun a dUigMil ptrfanrntBCo of the oB-
dal duliat. Aad it hu also Iwa htld
oompeunt (of OoMgnM to poviile tliat
bank* orRaaliud oiiilrr !la cnactnunta may
be taxed bj tlir SUM to a ovlaln extmit
and in a particular mj, uid nol otbcr-
wUc Van AlUu « A»e«on^ ! W.U.
6TS : V*op\* «. ComwWoner*. 4 WalL
S44 I 8wU<7 >: People, I Wall. 4W.
Bat Slate luatiao at a fedenl iiiflru-
tn»oialitj, la, foe instoMev of a iiilroad
<rhkh ia HDpkijrKl by tb* fOventBMt for
ita par]>«ae«, ii not UuplWdl; pmUhited
vhcrc it doe* not imfit the nnrnlneta or
capatnUtr of aoch iMtrument* 1« lervG the
gmrfnuMUt. noniaoa ■>. Padtic Ball-
Mad, t WalL (TU See Nntiooal Baak e.
ODnmoaWMlth, a Wall. SOS.
On Ibe «Ah(r band, and for Iha aame
itacD*^ tW 6«pt«nw Coort hia deckiad
It teeooiiJatMt for Ibe Vaitti atalea to
InpoH a lax vpoa the aalarr of a State
offiow. "If the moani and inetnunental-
itica onployvxl Iqr [tb* Meral] govM**
neat to tanj iiitu operatioM lb* fvwtn
panted to h an neoanrilf, and for the
laliaefafK-inaatadaB, exempt froan tax-
ation hf the Staens why are not thoee «f
the Stale* defending upon thaii nurvcd
|>aw*r* tat like TMtona e^oatl; exempt
from fedml taxation I Tbair imiintiured
exittoicn ii at oacnUal in the one rate
aa In thr other." The CoUeclor r. Day,
II Wall. 127. And the SUU <ouite, ap-
OD the meouing in H'Cntloob v. llaiy>
land, ha** held that Uanp datiea r«uld
nut br impoeed upon Stale pracoa. War-
ren *. VuH, S3 Ind. 370 ; Jane* v. delate
of Ke(^ 1» Wia. »S» : n6dd r. Coir. IS
Uicb. SW ; tTnion Itank e. IIlU. 3 CoM.
9» i Smith 9. Short, 40 Ala. 79(1. Kor
upon the Ux dpnls of a Stat*v Saf lea *.
Davie, SS Wit. tU. Nor npon tha offl-
eUl bonib ^ a elate ofllcsr. Slate e. Gaa-
too, 33 IniL 1. Some of thoee taeee am
reforrcd to with apjiTobation by Mr. Jn»-
tic* Ctiflool, in drcidiiiK the caae of Day
V. Bmnnittua. Sue Ain»rlcan L«w B«Tt«v
for Oct. isn. p. I7d.
b Veaiee Bank t>. Fcnno. S Wall. iO,
It «•■ held that Congrcaiional taiatioM el
State bank* of l«eae to an eiteat thai
vobU put aa end to their exiaUMa erat
MutUnticeMl, notirithitandiag it wa* m-
poaod br that expn*a parpoac and not for
rereDUo. And in Cnmdalt e. Nevada, 0
Wall. 3S, a Slat* Ui upon carritrs of paa-
aengne, of eo iniMh for each panengtr
carried oat of the Slate, w«a held r<ni,
heeana* If tha power exiited to Impoee it,
it might be extrclMd to an exieni thel
wovld pnclnde tha goTFrnBicsi bwn
tmufNttiMg ita troofa tlme^ the Scat*
by the w^ node*^ o( ita dtiectt* bwn
rialting fi" CapJIol or Ibe frdotB] officn^
where the 8tatu llat moat Ik rroeetd for
the pUTpnee. Am) lee Minol r. Pbiladel*
phia R. Col, S Abb. V. S. S33. C.
758
ctissmmoN op tbe united btxtes. [book itkl
created by the exercise of this power. The tax in qaestion is mi
tax upon the contract subciiatJng between the Koreniinent and!
the individual. It bt^rB directly upon that contract while Bub-
flisting nnd in full force. The power operates upon tbo contmct
the instant it is framed, and must implj^ a right to affect that
oontrocL If the States and eorporatiuns throuf^hout the Cniuo
pOMeM the power to tax a contract fur the loan of inuuey, what
shall arrrat this principlo in ita application to cvon,- other con-
tract T What measure can govonunont adopt which will not bo i
exposed to its influence?
§ 1M6. " But it is unneeesssry to pursue this principle throupih
ita diversified application to all the ccmtrscta and to the various
operations of government. No one can be selected which ia of
more vital interest to tlie community than lliia of burrowing
money on the credit of the United States. No power tiM been
conferred by the American pctiple on their (TJVfnimcnt, the free j
and unburdened exercise of which more deeply affects every I
member of our republic In war, when tho honor, the rafetr,
the independence, of tbe nation arc to bo defended, when all its
resources are to be strained to the utmost, credit must be brou^it
iu aid of taxation, nnd tho abundant revenue of peace and proA*
perity must be aiiticipatod to uupply tho exicencies, tbe argent
demands of the moment. The people, for objects the most im-
portant which can occur iu the progrew of nations, liave empow-
ered their gorenunent to make tbcae anticipations, 'to borrow
money on the credit of the United States.* Can anything be
more dangerous or more injurious than the admission of u prin-
ciple which authorizes every State and every corporation in the
Union, which possesses tlio right of taxation, to burden the
exercise of this power at their discretion?
§ 1047. " If the nght to impose the tax exists, it is a right
which in its nature acknowledges no limits. It may bo carried
to any extent, within tho jurisdiction of the State or ourporataoa !
which imposes it, which the will of each State and oorporatton
may prescribe. A power which is given by the whole American
people for their common good, whioh is to bo exercised at the
most critical periods for the moftt important parpuses, on the free
exercise of which the interests, certainly, perhaps the libi'rty of
the whole may depend, — may bo burdened, imjMJfied, if not ar-
rested, by any <A tbe organized parts of the oonfederaoy.
CH. 117.]
roWEM OP COSCBEM — TAXES.
769
I
I
§ HM8. " In a society formed like ours, with one Bupreme gov-
ernment for oatioual purposeo, and Qumeroiu State govenunenU
for other purposes, in manT' reapocts iodcpendont, and in the iin-
oontroUed exercise of manj- importaiit poircra, occasional intcrfcr-
enoes ought not to surprise us. The power of taxation is one of
tlie moot eaaeotial to a folate, and one of the most extensive in
its operation. The attempt to maintain a nile which shall limit
its exercise i» undoubtedly among tho most dolioate and difficult
duties which can derolve on those whoee province it is tocxjrauud
the supremo law of the land in iU applicatJMi to the cases oi mdi-
Tiduals. This duty has more than onoe devolved on this court.
In the porfonnanco of it we have considered it as a neoeesary
consequence from the supremacy of tiio government of the whole,
that ita action in the exercise of its Ic^timate powers shonld bo
free and unembarrassed by any conflicting powers in the {xwseg-
sion of ita )>arta ; that the powers of a State cannot rightfully be
so exercised aa to impede and obstruct the free course of those
measures which the government of the United States may right>
folly adopt.
§ 1049, *' This subject was brought before tlio court in the case
oE ITCuUocli V. The State of Maryland,' wliore it was thorou^ily
argued and deliberately considered. The question decided in Utat
ease bears a near rcsemblunoo to Uist which is involved in this.
It wiis discussed at the bar in all its relations, and examined 1^
the court witli its utmost attention. Wo will not re|feuit the rear
soning which cocductod us to the conclusion thus formed ; bat
tliat conclusion was, tliat * all subjects, over which the sovereign
power of a Statu extends, are objects of taxation ; but those over
which it docs not extend are, npon the soundest principles, ex-
empt from taxation.' 'The sovereignty of a State extends to
everything which exists by its own authority, or is introduced by
ita permission ; ' but not ' to those means which are employed by
Congress to carry into execution powers conferred on tliat body
by tlie people of the United States.* ' The attempt to use * the
power of taxAlioi) ' nn tlie means employed by the g<)veramont of
the Union iti jiursuance of the Constitution is itself an abuse ; be-
cause it is the usurpation of a power which the people of a single
State cannot give.* *The States have no power, by taxation or
otherwise, to retard) impede, burden, or in any manner ctmtrol
1 4 WhaMon, SIS.
TOO
COHaXlTCTIOK OP THE DNITBD STATES. [dOOE UI.
the operation of the constitntJODal lawi enacted by OongresB to
carry into exocuticm the powers vcatod la the Kcneral gorem-
ment.' We retain the opinions which were thvii esprcBsed. A
contract made by the government in the oxcrcioo of its power, to
borrow money on the credit of the United Statem is undoubtedly
independent of the will of uuy State in which (he individual who
lends may reside; and in undoubtedly an 0]>cration ciisentiiil to
the important objects for which Uie govemmout was oruated. It
ought^ thercloro, on the priuoipica aetUcd iu the cow of M'Calluch
V. The State of Maryland, to bo exempt from St«te taxation, atwl
coutivtitieutly from being tazod by corporations deriving their
power from States.
§ 1050. " It is admitted that the power of the gorenuiienl to
borrow money cannut be directiy opposed; and tliat any law di<
rectly obstructing its operations would be void. But a distinction
is taken between direct opposition and those laeaaures which laay
eonsoqucntially affect it ; that is, a law prohibiting loons to the
United States would be void ; but a tax on them to any amount is
aJlowablo. It is, we think, impossible not to perceive the inU-
mate connection which exiats between theae two modes of acting
on the subject. It is not the want of original power In on inde-
pendent sovereign State to prohibit loans to a foreign government
wliich restrains the legislature from direct opposition tu those
made by the United States. The restraint is impoeod by our
Constitution, l^e American people have conferred tiie powvr of
borrowing money on their government ; and by nutkitig that gov*
ernment supreme luive shielded Ita action, in the exercise of this
power, from the aotion of the local governments. The grant of
the power is incompatible with a restraining or oontrolling power;
and the de<!laration of Hupromacy is a declnration that no snch re>
straining or controlling power shall bo exercised- The ri(^t Ut
tax the contract to any extent, when made, must o|>erate npon
the power to l>orrow, before it is exercised, and hare o sensible
influenoQ on tlie contract. The extent of this inflnence depends
on the will of a distinct government. To any extent, Jiowpver in-
considerable, it is a liui-den on the operations of government. It
may be carried to an extent which will arrest (hem entirely.
§ 1051. " It ts admitted by the counsel for the defendanld. that
the power to tax stock must affect the terms on whicli limua will
be made. But this objection, it \a said, has no more weight, when
»
POVEBS or O0KGBE68 — TAXES. 761
nrgcd ngainitt Uie application of oti noknowlodged power to gor-
ernment »iack, than if urged agiinat its applicatioD to lands sold
bjr the United States. The distinction is, wo think, apiMtrcnt.
When lands are Hold, no oonnection remains between the pur-
chawr and the government. The lands purchaaed become a part
of the RUU0 of property in the countr)-, with no implied excmp*
from common Inirdenn. Alt lands are derived from the
iCral or particular gnvernment, and all lands are subject t«
taxation. Lands sold are in the condition of money borrowed
and repaid. ItB liability to taxation, in any form it may then as-
Bumc, is not questioned. The c«nni?ction between Ute borrower
and the lender is dissolred. It is no burden on loana, it is no
impediment to the power of borrowing, thai tJie money, whpn re-
paid, loBGB its exemption from taxation. But a tax upon debts
doe from the gorcnunfint stands, we think, on very different prin-
ciples from a tax on lands which the gorernment has sold. The
Federalist has been quoted in the argument, and an eloquent and
-well-merited eulogy has been bestowed on the great statesman who
is supposed to bo the author of the number from wbicli the quota-
tion was mado. This high authority was also relied upon in the
ease of M'CulIoclt v. The State of Maryland, and was considered
by the court Without repeating what was then said, we refer to
it aa exhibiting our view of the sentiments expressed on this sub*
jeet by the authors uf that work.
§ 10S2. '* It has been supposed that a tax on stock comes with-
in the exceptions stated in the case of U'Culloch v. The State of
Maryland. Wc do not think so. 'I'be bank of the United States
is an instrument cascntial to the fiscal oi>erations of the govern-
ment : and the power which might be exercised to its destruction
was denied. But pro|)erty, acquired by that corjioration in a
State, was supposed to be placed In tlie same condition with prop-
erty acquired by an individual. Tlie tax on goremmcnt stock is
thouglit by tills court to be a tax on the contract, a tax on the
power to borrow money on the credit of the Cnited States, and
oonaequently to be repugnant to the Constitution."
$ 1058. It is observable that these decisions turn upon the
point that no State can have authority to tax an instrament of the
United States, or thereby to diminish the means of the United
States, Uiied in the exercise of powers confided to it. But there is
oo prohibition upon any State to tax any bank or other corpora-
762 comnmmoK of tbk wmsD states. [book iil
tioa created by its owa anthority, unlesa it haa restrained itself,
by the charter of incorporatioa, from the power of tazfttioo.*
This subject, however, will more properly fall under notice in
some future dtscussionB. It may be added Uiat CongreBs may,
without doubt, tax State banks ; for it ia clearly within the tax-
ing power confided to the general government. When Con-
gress tax the chartered inatitutiona of the States, they tax their
own oonatituents ; and Buch taxes muat be uniform.^ But when a
State taxes an institution created by' Congress, it taxes an iustru*
meat of a superior and independent sovereignty not repreeented
iu the State legislatura (a)
^ PltindetiM Buk v. Biningi, t Peten's R. Sli.
* irCaUaeliv. Huyknd, 1 Wheat B. SIS, US.
{a) 8«e, bowsrer, Thompna v. Facifie lUniotd, 0 Tall. S19 j National Bank •■
Commonvultli, 9 WalL SS8.
APPENDIX.
APPENDIX.
1
WatLK Ihii wuk mt lUtiiig through tht ptttt, Pnstihnt Jukaw't Pnolaaalioii
of tb« lOtb of DMarobtT, 1833, conoerniag tlw (Uwn] ncnt onUnanw of Swath Cam-
Una on tha talgect oT the tariff, apptand. Hwt doenoMBt «mtuM * moM cUbontc
Ti«w of itT«nil i|n«Miuiw which bar* been dUciwMil In thU tni lh« folhwtng votuMf,
(Specially itqwctlng the Kuiiramsoy of ifa« law* «f th« Uniou, tho right of tbe
jndidiuy ta <Ud<]e upon the coiiitilutioiuilitjr of time bwa, auil th« lata) repu^iint'}'
to the CoiUtltiitiMi ot the moJam iloctrino «f nnltificatioo aaaenei tu that onlinuivp.
la a *tat« paper ll I* radlled to wry high praiae (or tba clearncu, fame, ami f<lu<|nAiin>
with yihkii it liai d«r«ni]«d the righia and powen of tha natiouul gnvHrnnitnt. 1 glivjijr
oopf into tfaoe pagn Bome of it* motil Snijwrtant pMngti^ a* smoDg the ableat eoni*
BiRitario) (Tot oBrfd tipon the Cooatitction.
" Whwaaa, a convcntjoa a»Dmbleil !n the Stata of Sovlh Carolina hare paawl an
ardlitaoN hf which thay daelaia 'that tha xntral acta aad part* of «ts of tlw Csa-
gieaaof tb« United Statea, pntporting to boUwafOT tbelinpoaiiigaf dutinaod inpoatu
on tba iBpottatMn «f brdgn oonunodttiea, and now liating adoal opnatlaa and albct
wItUBlhaUDltad9lata*,aadmai«wpa:hdljr' Iso uta for tli« aama purpoaa paaad on
tha 8«lh of Hay, 1833. and on thelllbof July, 18SS, 'aiannanthoriitilbylbeComi-
tutkn of the tfnitol Btataa, and riulate the trv* mvuiing and iaKait tberrof, a»d ara
nail a*d raid, and no law,* nor binding on tha chinna of that Suieor ttaoffiotni and
lif thit laid ordinan«o it ia fvrtliar doeknd to be valairful far any of iht (oMtilntad
authoritlea of tha Stata, or of tha Cnitad Statai^ to anfotuf the paymint of tba datiaa
impoanl by tt» nhl acta wtthln tha aania Stat^ and tliat it i« tha doty of iha Itgiala-
tvrs to pass luah tin as may be neoasary to give toll effect to the aid otdiMJia :
' ' And wh«r»a, by tbe said ordinance, it i> furtlKr ordained, that i> no ease of law m
a^tf, doeided in the ooutti of Mid State, vbmin ahall b« drawn in qoealioa the ralid-
Hy «( tha aald onllnanea, or of the acta of the lagUalura that nay be puaed to (in It
dtecl. 0* o4 the said Uwt of the Unltad Suta^ no a|>p«al ahaU be allowid to tba Su-
ptens* Court of the failed States w>r ahaU any oopy «f the iword b* iwralUed or
aUoired for that pnrpoae, and thai any pataon attempting to take aoch apptal aball br
pmtihad as for a eoatmpt of «ouit :
"And, nnally, Iha aaM ordlMno* darlarm that the paople of Sooth Caralina wfl]
maintaiii (he nU ortUnaaoa at erery batard ; and tliat tltay will oontfdar iht paaasgi
of any a«t by Congrea^ aboHiUi^ or chising the port* of iba taid Stata, or otharwiae
ahatnicting tha frta l^roM or cgroM of t wails to and fttm tbe said porti^ «r any
etbet act «f th* Fadaia) gornnawDl to ooerot tbt Bute, that np her porta, dMimy or
hartas her eomniem. or to <n(nrra the aaM acta, oUianrita than ihrciagh tba cItII lit-
hnAala of the oonntry, aainoonusUat with tha loMgtr cwnttnnaMa of South OareliBafn
the Cnloa : and that tha paopla of tbt nU State will tfcMtalbnh held tfaematlna
m
coNsnTcnoN 07 the cnitkd btatk. [booe m.
Qsurpatioti of a power which the peo[>le o( • stogie Suite cannot
give.
§ 10-10. " We find, then, on jcuit theorjr, a total faElurn of this
orifriaal rif^ht to tax tho meann employed b; the govenuoent of
the Union for the eiecution of its powem. The right never ex-
isted ; and the qoestioQ whether it has been surrendered cannot
arise.
§ 1041. "But, waiving this theory for the present, let oa re-
■nme the inqiiirr, whether this power can be exert-ised by the
respective States consistently with a fair isunstrucliou of the
Constitution. That the power to tax involvm the power to do-
stroy ; that the power to destroy may defeat and mndor uscIum
tlio power to crL-at«;(<i) that (hen; is a plain repngnanoo in oon-
forring on one government a power to control the cotwtitutional
meiiftures of another, which other, witli respect to thoso very
nieaaureti, la decliired to be suprtiuic over that which exerta the
control, arc propositions not to be denied. But all inconsisten-
cies are to be rueonoik-d by (he mngie of Uie word (m^MMi:
Taxation, it is said, docs not necessarily and imavoldably
destroy. To earry it to tlio cxcscss of destruction would be an
ahusc^ to pruftuiue which would baniidi that cunliilence which Is
essoDtial to all government. But is tliis a coao of conridenoe *
Would the people of any one State trust tliu»c of another with a
power to control the most insignificant opcntionit of their State
government? We know they would noL Why, then, should
we suppose that the people of any one Stato would he willing to
trust tliose of another with a power to control the operations of a
government to which they have confided their most important
and most %'alual>Io intcrestaf In the legislature of the Union
alone are all represented. The legislatnre of the Union alone,
therefore, can be trusted by the people with Uio power of con-
trolling meoaurcs which conceni all, in the conlideni-e that it
will not be abused. Thia, then, is not a case of coniideDoet and
wo must consider it as it really is.
§ 1042. " If we apply the principle for which Uio State <d
(a) A itrfUng Uliutntion U •Abrled
bf lite CMO cf ToHia Ba^ v. leitao, 8
Wall. 633, in which lantliMi impoand ajh
on Bute hinin and tholr dreubtiao Tor
ihe rtrj pnrfKM* of tlmtnotiun wm litld
not uaeoQrtittition*!. Tin earn of {■»•
[Mita Wrici not priia«il)r tor tb« piu>
foim tit rcvMia^ bnt in onUr to aid hone
lodattir hf chMUas impwtatkiiu, nuy
«lu b« rtr«R*il to.
CH. ZIV.]
MNBMBnf' awpuwi — Tins.
765
Marylnnd contends to th« Conntitution g^neroll}*, we Bball find
it capable of changing totaU; the character of that inBtrumonb
We nhall find it capable of arrrating all the metuiiire6 of the goT-
emment, and of proHtrating it at tlio foot of the States. The
American people hare declared their Constitution, and the Uwb
made in pursuance thereof, to bo aupreme; but thin principle
would transfer the Buprcmacy, in fact, to the Stutoa. If the
States may tax one iiutrument employed by the government in
the execution of its puwerH, they nmy tax any and ovory other in-
strument. Tlioy may tax the mail, they may tax the mini, they
may tux patent riglitii, they may tux the papers of the cualom-
houae, tlifly may tax judicial pruecw, Ihey may tax ull the means
employed by the government, to an cxeem which would defeat
all tJio cnda of government This was nut intended by the
American people. Tltey did not design to moke their govern-
ment de)>cndent on the States. Gentlemen say they do nut claim
the right to extend HtoXe taxation to Uicsc objects. They liuiit
their pretensions to property. But on what principle is this dis-
tinction made? T]i<«c who make it hare furnished no reason
for it, and the principle for whicli tltey contend d(;iiie8 it. They
contend that the power of taxation has no other limit than is
found in (he tentli iicction of the first article of the Coimlitulion;
that, with reupect to everything else, the power of the i>tatt-a is
supreme, and admits of no control. If this be true, tlie distinc-
tion between properly and other subjects to which the power of
taxation is applicable, is merely arbitrori,-, and can never be
sustained. This is not all. If the controlling power of the
8tat«s be cstnljlished, if their supremacy, as to taxation, be ac-
knowledged, what is to restrain their exercising this control in
any ahapo they may plcaae to give it? Their sovereignty is not
confined to taxation. This is not the only mode in which it
might be displayed. The question is, in truth, a quration of
fliiprcmacy; and if the right of the States to tax tlie means em-
ployed by the general government be conceded, the deelaration,
that the Conatitution, and the laws made in pursuance thereof,
shall bo the supreme law of the land is empty and unmeaning
declamation. "
§ 1043. " It has also been inaifited that, as the power of taxa-
tion in the general and State governments is acknowledged to be
concurrent, every argument which would sustain the right of the
k
tf ife (on
tu tW 8m« bMka, ndeoaU a«t prave the ti^ itf tt» .
to Ux dw RmIc oI dw [JBtei SMea.
I I'm. "TV Owrt ba fcMtoiul <m Ob ■Ajeet to
Mil»ral« oMaUtMioa. TW nask Is a MBrietM
0Mw Imt« as povtr; bf Uxatfaa v oUntpbe, to
faia, harden, or fa tay wmaaKr eoatmt. the apentkos «i
•OBrtftatioMl Istn euMted bf CangrM to csrt nto
dM pomn TMtod la Um gnml fomaaatat. Hub is, we ttifc,
dM oaaraUabU nmmgaBBw o( that mtfatmaer wtaA tb*
CMMtttetloB bM declared. W« sra aaaiBaaal; ol ofcuaa
Omt dke lav paaied bj the legialatim of Mairland, fanpoaSar
a tax oa Um Bank of the Cnh«d Ststea, U tmconetitDtiaoal and
I lOf/*). In anoth^ ratfi the qa««tioa was raised wbedier a
Hiak- tiatl a cjfutitutional autboritj to tax slock Istofd far liMUa
to ttu! Un)l«d States; and it was held by tho Snprema Court that
■ TW itottrtM *w apf ■ i> iJiiiiiiMid bj Uw Bopnat Omt b> • bin «*m, mJ 4^
liW«i«lr twArawL OAon •, Aiak of tiM ITBJtad SMc^ « WImL & ?«. «t» (»
•m I 1 Rnl't CoHML UeL H pp. SU l« 3tl^
I
I
POWKSa OF 00KGBE88 — TAX88.
W
a State hod not ' (a) The reasoning of the Court wag aa follows :
** Is the atuck, i»BU«d for loans made to the government of the
United States, liablu to be taxed by Stat«s and corporutiooB ?
Congrrtw has power 'to borrow money on the credit of the
Uuitvd States.' Tlie stock it iaaueft is Uie cvidenco of a debt
1 WcaioD V, ThoCilyCoancUofCbwIartoD, tPtton'kB. M*. im-Hr. ChUtJuitiot
Hanbiill.
I
(a) Sm BiuiV of Cmhhum* «l N««
Toiit. 3 Itli^ck, 6!0 ; Ikiik Tu Cm. S
W«n. SOO : TliB Biiik P. TliP Uijroir, 7
Wall. IS ; lUbk n. Thn Supervuon, 7
Vai\. SO.
Th« gvoanl principlM dcdut-l in
M*C)iUooh Vi Hwyluiil ««ra tgnin stipliwl
In D«bUiw v. Erie Co., IS Ptt. liS. II
wu [hera hcUl tlinl ■ .Stulc could not loTy
a taj uiKiti the <omi>onution tllowfid bj
the tIaitfJ SUIM to oii* uf Jta «ffloin,
which compcQiatiou, it u to b* ununod,
wu no mora tlioa the irniaa mro wortli,
■nil no mora Uwu would b« tufielnit to
Mcore ■ diligent perionnHioo or the oOi.
Dial dntl**. And It hM «Im bwn bald
ootnpetmt for Ctmffmt to pravldo thtt
banliaoTBtDbednnderitieiuctiiiDiitsmay
be tAXti \>J the fttatoa to ■ cfruin txlrnt
and in ■ parlimUr w*y, •ud Dot oth»r-
vIm. Van Allen «. Aunon, 3 Wall.
fi7S ; Fvopla p. CoiuaitMoncn, I Wall.
Ml ; Bradivy r. Ppota*, t Wall. tiO.
But Slate taxation of a federal Inttm-
mentality, a*, for inetanoe. of a railroad
whiah it «n|ilojed by tlio goTernment for
it* |iurpa«a, ia not fmpliodly problUtad
where it doea not impair tlM naofulnMi or
etpabHily nftuch Inttmnaolato ten-e the
goranmeut. Tbomton r, Pauillc Rail-
Kad, 9 Wall. S79. Sn Naliuual Bouk c
CMnmonwoollh, 0 Wall 9SS.
On the otbiT band, and for tho aamo
reaiona, tbc ihi|>n9nie Court bax ducland
It iiKionipalenl for the tTnited SCatci to
fupoMt a ux upon iho ulaiy of a State
offloer. " If tlie nienn* and liiAriimRnul-
itiaa MOfJoyed by [tbe federal] gfrtn-
mant ta cany into operation the powraa
granlHl t» it art ne«>iuBrl]y, and foe tbe
■aluof w>U-pnMrratioii,***npt from lax-
4tlMt tr Ha Slat**, why an not thoat of
tho Statot difpending upon their wtrnad
powen for like nawDi eqnally «unpt
from fodcml taxation I Thnr noimpdnd
MlUanoa i« aa «*»«nllal In tbe ono caaa
aa in the olber." Tbe Collector r. Day,
11 WiU. 187. And Ibe Sulc couits. ii|k
on the muoninK !□ BfCullocb e. Mniy-
bud, bavD held that atamp dntita eould
not be impoatd upon Stal« proona, WajN
Ten •: Panl, 23 Inil. 270 ; Jonea o. Ertato
of Krnp, 10 Wit. seS ; Flflcld r. Cloaa, IS
Mich. SOS ; Union Bank r. Hill, 3 Cold.
82S ; .SmiUi s. Sliort. lU Ab. 7«e. Km
upon llie tax dooli of a Stalo. Sayloa *,
Davii^ 33 Wii. S2S. Nor upon the ofQ.
tUl bond* of a itate offloer. Stale r. Ga»-
ton, SI Itid. I. Soma of thaw <-aiM are
refprrvd to with approbation by Hi. Ju*-
tice Clifford, in deciding the cam of Day
V. Bufllngtoa. Bee American LawRevicir
forOrL U71. p. 178.
In Vaulu Bank e. Fnona, 8 Wall. 51^
it wta bebl tliat Congnaiioiul laialloo of
State bank* of iuue to an extent that
would pot an end to tbdr rxiitence waa
eonatitutiooal, nolwlUutandIng it wu Im-
poatd for that Mipreaa purpoMaud not lor
revenue. And in Cnndall «. Neradi^ t
WalL Si, a State luc npoo carrien of {■••
aen{{en, of ao much tot each fMtenfec
carried out of the StatF, waa held void,
hecaiuo if the powtr exiitol to impoae it.
It might b* <iKTcl«ed to an eiltnl that
would iirMluda tbe guvrmniKut fium
tranaporling iti troopa lbreu{[fa the Stato
by lh« nHiol modea, or ita dtiMiii from
vlaltli^ the Capitol or the fedora! offlcM^
when the State Un« mutt be cweatJ for
tbe purpow. Anil Bpe Minot v. Philadel-
phia R Co., S Abb. I'. S. S23. a
758
oomnnmoK op tdr cnttbd nx-na. [hook m.
created by the «xerclM of this power. The tax in question is a
tax upon the contract nutwintini; between the Rovenuncnt and
the individual. It bcnni directly upon that contract while Hub-
giftting and in full force. The power operatea upon tho uontract
the iimlant it is framed, and must imply a right to afTMit that
contract If the States and corporations throughout the Union
pOHaeeB the power to tax a contract fur tho loan of money, what
ahall ancHt this principle in its applit-ation to every other con-
tract? What measure can government adopt which will itot be
expoHod to its inlliience ?
§ \04G. " Dut it is anneeenaary to pnrsnc this principle throngb
its divcntirie<l application to alt the contracts and to the various
opcratJons of government. No one can be aelcetcd which is of
more vital interest to the commimity than thin of burrowing
money on the credit of the United States. No power has been
conferred by the American people on their ptvernmt-nt. tho free
and onbordened exercise of which more deeply a0ucta every
member of our republic. In war, when tho honor, the safety,
tlie independence, of tho nation are to be defended, when all ita
rciources arc to be strained to the utmost, credit must bo brought
in aid of taxation, and tho abundant revenue of peae« and pro«-
perity mont bo anticipated to Hupply the esi|*encies, tho nrgent
demands of the moment The people, for objects the moat im-
portant which can occur in the progress of nations, have empow-
ered their government to make these anticipations, 'to Iwrrow
money on the credit of the United States.' Can anything be
more dangerotts or more injurious than the admission of a prin-
ciple which authorizes every State and every corporation in tho
Union, which poiuKsses the right of taxation, to burden the
exercise of this power at their discretion ?
§ 1047. " If the right to impose the tax exists, it is a right
which in ita nature acknowledFres no limits. It may be carried
t'l any extent, within the juriftdiction of the Stale or corporation
which imposes it, which tho will of each State and corporation
may prescribe. A power which is given by the whole American
people for their common good, which is to bo exercised at tlio
most critical periods for the most important purpoaeti, on the frwe
exercise of which the interests, certainly, perhaps the Iil>erty of
the whole may depend, — may be burdened, imjieded, if not ar>
rested, by any of the organized parts of the confederacy.
OH. ZIT.]
POWeSS OF COKGRBBS — TAZB3.
T60
§ 1048. " In a aocietf fonned like oun, witli one sapromo gov-
ernment for D&tioual ptirposcs, and nuinoroiu State guvemmonts
for uUier piirpnses, in oianj- resiiocts in<lc[wndont, and in tlto un-
ooutrulltid exercise of manj' iuiportaot powers, occoitional intcrfer-
eneee ought not to surprise u». The power of taxation 'm one of
the most essential to a Htate, and one of the most cxtvnsiro in
it* Operation. I'he attempt to maintain a rule which ahall limit
its e.\erci»e is undoubtedly among the most delicate and difficult
duties which can derolre on thone whose province it is to expound
the supremo law of the land in its application to the coses oi indi-
vidoals. This duty has moi'e than once devolved on this court.
In the performance of it we have considered it as a ooocasarj
consequence from the supremacy of U»e goveniinent of the whole,
that its action in the exercise of its legitimate {towers should bo
tree and unembarrassed by any conflicting powers in tti« posses-
sion of its parts ; that tlie powers of a State cannot rightinU; bo
BO exercised as to impede and obstruct the fre« coutBO of thOM
measures which the government of the United States may right-
fully adopt.
§ 1049. " Thin subject was brought before the court in the UM
of M'CuIloch V. The State of Maryland,' whore it was tborooglily
argued and delil>erate1y considered. The questiuu doeidud in that
ease bears a near resemblance to that which is involved in this.
It was discussed at the bar in all its relations, and examined by
the co«trt with its utmost attention. We will not repeat the rea-
soning which conducted us to the conclusion thus fonned ; hot
that ooncluston was, tliat 'all sabjecta, over whidi the surercign
power of a State extends, ore objects of taxation ; but those over
which it docs not extend are, uj>on the soundest principles, ex-
empt from taxation.' *Tbe sovereignty of a State extends to
everything which exists by its own authority, or is introduced by
its permiasion ; ' but not * to those means which arc employed by
Congress to carry into execution powers conferred on that bo<ly
by the people of the United States.* ' The attempt to use ' Uio
power of taxation ' on the moans employed by the government of
the Union in pur^oanoe of the 0<:mKtittiiton is itself an abuse ; bo*
cause it is the usurpation of a power which the |>eop!e of a single
State cannot give.' 'The r^tates haTO no power, by taxation or
otherwise, to retard, impede, burden, or in any manner control
I i WbMton, SK.
760
CON8TITCTI0N OF THE TOITED 8TATB8. [BOOK lU.
the operation of the constitutioniU laws eniictcd by ConRreea to
carry into vxtMiutioa the powers veiit«d in the general gorem-
mcnt.' Wu retain Uie 0|jiniuaK wliich were then osprcMed. A
contmct made by Hw govvrutUDul in Uic vxcrciau oi its puwor, to
borrow money on the oredit of tho United StatM, u undoubtedly
independent of tlie will of any State in wtiicli the individual who
lends may r««idc; and is undoubtedly an operation viwi-utial to
the important objects for which the government was vreatwL It
otiglit, tjii-refore, on the principles settled in tlie cum of M'CulIoch
V. The State of Maryland, to be exempt from Stul« Luxation, and
oonsoqiiontly from being taxed by corporations deriving their
power from States.
§ 1060. " It is admitted that the power of the govcrnmest to
bon-ow money cannot be directly opposed ; and that any law di-
rectly obstnicting its operations would be void. But a diittinctioa
is taken between direct oppoutiou and tliose measures which may
consequentially affect it; that is,s law prohibiting loans to tbo
United Stat«fl would be void ; but a tax on them to any amount is
allowable. It is, we think, impossible not to perceive the inti-
mate connection whidi exists between these two modes of acting
on the subject. It is not the want of original power in an inde-
pendent sovereign State to prohibit loans to a foroijfn govGrnmcnt
which restrains tlie lef^slature from direct uppositiun to those
made by the United States. The restraint is imposed by our
Constitution. Tho American people have conferriMl the power of
borrowing money on tlictr government ; and by making that gor-
eminent supreme have sliieldod its action, in tho exercise of thta
power, from tho action of the local governments. The grant of
the power is incompatible with a restraining or controlling power;
and tJie declaration of supremacy is a declaration that no such re-
straining or controlling power shall be exorcised. Tho right to
tax the contract to any extent^ when made, must operate upon
Uie power to borrow, before it is exercised, and have a sensible
inlltieiice on the contract. Tho extent of this influence dcpendn
on tlie will of a distinct govommcnt To any extent, however in-
considerable, it is a burden on tho operations of government. It
may be carried to on extent which will arrest them entirely.
§ lO&l. " It Is admitted by the coimsel fur tho dofcndnnta. that
the power to tax stock must affect the terms on which loans will
be made. But this objection, it Is said, has no more weight, when
CB. XtT.] POWEUS OF CONGEtSBa — TAZHi 761
urged Bf^inst the application of an acknowledged power to gov<
emment stock, than if ur^^ against its application to laiida sold
by the United States. The distinction in, we think, apparent.
When lands arc sold, no connection remains between the |>ur-
chaser and the government. The lands purchased hpcnme a part
of tlie maas of property in the country, with no implied exemp-
tion from common burdens. All lands are derived from tlie
general or particular (jovummcnt, and all lands are subject to
tasation. Lauds suld are in tlio condition of money borrowed
and repaid. Itti liability to taxation, in any form it may then n»-
sumc, in not ()u<.<stiuued. The couuection between the borrower
and the lender i» dissolved. It is no burden on loans, it is no
impediment to the power of borrowing, that the money, when re-
paid, loses its escmptiou from taxation. But a tax upon debts
due from tlic govcnimcnt stands, we think, on very different prin-
ciples from a tax on lands which the frorcntmcnt has sold. The
Federalist has been quoted hi the argumi-ul, and au elixjuent and
wclUmeritod eulogy has bet- u b<;stowcd ou tlie great statesman who
is suppoaod to bo the author of the number from which the quuta-
tioo was made. This high authority was also relied upon in the
case of M'Culloch i>. The State of Maryland, and was considered
by the court. Without reiieating what was then said, wo refer to
it as exhibiting our view of the sentiments ospressed on this sub-
ject by tlie authors of that work.
§ 1052. " It has been 8U])posod that a tax on stock comes witli-
iii the exceptions stated iu the cose of M'Culloeh v. The State of
MurA'laud. We do not tliink so. The bank of the United States
is un iuatrumeut essential to the fiscal operations of the govern-
ment ; and the power which might bo exercised to its destruction
was denied. But property, aocjulred by that cor]>onition in a
State, was supposed to be placed iu the same condition with prop-
erty acfjuired by ou indiriduol. The tax on government stock is
thought by this court to bo a tax on the contract, a tax on the
power to borrow money on the cre<lit of the United States, and
coosequcQtly to be repugnant to tlic Constitution."
§ 1068. It is obeorrsble that these decisiune turn upon the
point that no State can have authority to tax an instrument of the
United .States, or thereby to diminish the means of the United
States, used in tlic exercise of powers confided to it. But there is
uo prohibition upon any State to tax any bank or otiior corpora-
I
762 coNmnmoN op the dntted biaibs. [book m.
tion created by its own matboritj, unlen it bas restrained itself,
by the charter of incorporation, from the power of tazatjon.'
Thia subject, however, will more properly fall under notice in
some future discuaaions. It may be added diat Congress may,
without doubt, tax State banks ; for it ia clearly within the tax-
ing power c(mfided to the general government. When Con-
gress tax the chartered inatitutionB of the States, they tax their
own constituents ; and such taxes mnst be uniform.* But when a
State taxes an institution created by' Congress, it taxes an inatru-
ment of a superior and independent aorereignty not represented
in the State legialataro. (a)
> Proridenee Bank a. BiDingi, 4 Fettrt's B. 614
• VCdlloch V. Hujluid, 1 WhnL B. S16, 485.
(a) 8m, howerer, Thompwu v. Ttn&a Tt^^mmA^ g WalL 679 ; NatloiiBl Btuk •.
OammonwMlth, 9 WslL SfiS.
APPENDIX.
I
APPENDIX.
' Wbile tbis irork ma pasnng throagh the preM, Fre»id«Qt Jubon'H Proclamation
of the lOth of Decembor, 1S32, concerniitg tlis [thsD] recent ordmanm of South Caro-
lina on the enbject of the tariff, appeat«d. That document coDtiitis s most elaborate
Tiew of terend questtons which hare been diacnued in this and the following volume,
especiallj respecting the BUpreinac; of the Un of the Union, the right of the
judiciary to decide upon the constitutianalitj of these laws, and the total repogaancjr
to the Conatitutton of the modera doctrine of nuUificatioD amerted in tliat ordinance.
As a state paper it is entitled to rerj high pntiw for the clearness, force, and eloqnenw
irith which it hsa defended the rights and powers of the natiooal govemmeat. 1 gladlj
copy into these pages eome of its moet important pMsages, aa among the ablest com-
mentaries ever offered upon the Conatitntion.
" Whereas, a convention assembled in the Btate of South Csrolina hare ptssed aa
ordinance by which they declare 'that the sereral acts and parts of acta of the Con-
gress of the United States, purporting to be laws for the imposing of duties and imposta
OQ the importation of foreign commodities, and now having actual operation and effect
within the United States, and more especially ' two acta for the some purpose passed on
the aath of Hay, 1828, and on the llthof July, 1832, 'ore nnauthoriied by the Consti-
tution of the United States, and violate the true meaning and intent thereat, and ore
null and void, and no law,' nor binding on the dtizans of that State or its officers ; and
by the said ordinance it Is further declared to be unlawful for any of the constituted
authorities of the Stste, or of the United Statsa, to enforce the payment of the duties
imposed by the said acts within the same State, and that it ia the duty of the tegiala-
tuie to pass anch laws as may be neceaaary to give full effect to the said ordinance :
" And whereas, by the said ordinance, it ia further ordained, that in no case of law or
equity, decided in the courts of said State, wherein shall be drawn in question the valid-
ity of the said ordinance, or of the acts of the li^latiire that may be paseed to give it
effect, or of the said laws of the United States, no appeal shall be allowed to tlie 8a-
preme Court of the United Statea, nor shall any copy of the record be permitted or
allowed for that purpoiMi, and that any person attempting to take such appeal ahsll be
punished as for a contempt of court :
" And, finally, the said ordinance decloree that the people of South Carolina will
maintain the said ordinance at every hazard ; and that they wilt conildeT the passage
of any act by Congreas, abolishing or closing the ports of the said State, or otherwiae
obstructing the free Ingress or egress of vessels to and from the said ports, or any
other act of the Federal government to coerce the State, shut up her ports, destroy or
harass her commerce, or to enforce the said acts, otherwise than throngh the civil tri-
banals of the country, aa inconsistent with the longer continuance of South Carolina in
the Union ; and that the people of the sold State will thenceforth bold themselves
^-m-
-*■! ihiHi, HiMiliil^ii|ii»in iilii ilii |ii|li rfTiiH 1
to Ub bm If tk^ oMMiy. MbMntf* if to Owrihatktt. Md W*i« i« ta alyKt te
Jlinliwrf IkUkiM. — 1k«rakMwtM.eMn]wMtfl«ipAti^cnteM^ W
Mr Mm^ «bha« aaj «thr liH ta Mile ihw tkn tfaaa «f jalriiiriMi »i • om-
■M *Mi^ Ifc Wgll > MgMMty Ml^i M « ^ariMi fliiy w <WH. — tfcl Ma*4
DatM. yairta to<«k««. rtfcfc, pgJiMiJ fcy mt hiff? Cf^HlllM. ^ Wo^ta m.
b)r ik liTw rf HMna. to • «tt» e( fWip^ity « koMs Md bich OMiiMrtiM atn^
nnij', if mr. *>|m11«1 la tke hHtotj </ ■itiiiii Ta fimni tUi faoad of ms poUii-
m] ililMB> ftiM liiUwMi^ toMMteM MriBhte tfcji MM «l iiiIimI Immt m4
pMip*«1iy, «arf w )mUI^ Um waUMei bj MIm^cWhn bam wpij hi »« 1,
Avvuw Jicuoa, rtiiMitfi/iTIi riiffil llTrt^ tanrtiiinin |iiif ii ill! i\i\mt
J'MOAaATWV.MAlaf Mjvicwtaf iha ONrtilBiiM mJ !•*■ mAaHs to tbt mm*-
— iiaHrt^lh<«MwttMrfg«^CWiMM,Ma to ikaMMM (kqr Imm |Mt
ftnklBMMalnlbMi,4Kfari^tfa«Mam«Uthd>qr«aiM|«b«Mla pwM^ nrf,
l||iill«g t»lfc« ■■*iT«M<Nt m4 frtriitfaM rflfc* fwpK —a tkaafilMi
^OMKn llul IBMt iMntaUj l«nlt b«* M obOTVMM o( tlw 4kUt«B oT th* (
■■ Huiri door «imU rai«dn •! m* MiUnK ■•(• Am U» aMNin «r il
witk *feM I aa Mr, or Hj btf^Aar ba bmmii, tat fnmtriM^ tha paM* of the
tTnka. iMihttht axacnticni sf tW b*i. Bat tW twpcalag MpMt wUoh appawtiM
ha* a«BM«4 in thb OHt, b; dotUng itwlf •illi Sou aatliant;, aad (Jm dmy toMnC
wUch Um tmofti «l the Dnhed Stato man ill Iwl tn taartoti^ a i«nrt ta tfrc^tf
nMMun, vUU than b a beiw thai aaTthiag viU ba jirUM t« wa*»«lag aad nMi»
Md dw MtiM «f Um tIcvh i (BtcTtdao(tUiiiMpartMtqaMliaa.MwdlHadkttaet
MMilillnii ofihaeMWirtkhmy WMaaf faiy wMtaqalfaBiatapWMfc
"IWontlMvraUlbmdad, BatMtkfawMMiibUtl^t aT ndili^ Mt* which aca
]iUlnt]r uKoMttWOMd Md too mnaiariw i» ba cndniad. b«t m the ttnage pocUlaa
Uwi »Bj nan tutc BMj not only detlvt aa aet of CoogrcM vdU, hat ptaUbit it* pj»-
enUmi. — Ihal ikwf najrdo tUi ooMMmtly with dbaONarimilen, —that ibt tnMTon-
itniottM af itwt taatnmnit pmdu a 8t«U to Mata fu placa to tht CbIm. wad ]rptl«
lMi»d by no Mhrr of iu la«a tham thaae It OMy dietMa to eonndar a* ooBrtitntioiiaL
It I* tnw, Ibry add, Ihat lojnatify tUaabroptiaaof* law it nwtba palpably oeatMry
to ill* CniMlltatjon ; bat It i* arldaat Ibal to pT* tb« riKbt of HalNlnff laa« of that
dia>Tri]>Ilon. oonptnl with th* uaroatmlM licbt to drddc what lawi daatr* ihat char-
aitar, U to Rlra ttt* pawir of nabdng al) lawv For, »• by iha tbtofy then U no tp-
fiti, tha na*on* illignl by tb« Sui«, goad ar bad, muH fnnO. If it •honU U aU
tkat |«b1(e opinio* i* • nfllwDt chtck aRiiaat the abaM of thia pawar, it aaay h*
aaktd, why It Usot doMiNrf ■ aiifflclent gnafdaKabiHIhapaaBmaaraBnicoBAlMlioMl
•d by CtegiaM. Tbm li, howtrat, a natrai&t la tlili la«l eaia whldi nakat ib* a«-
anmad poaar <f a Suia Ben liMMndbh, aad wUtk 4om not asiat la th* otb«r.
TImo an tara aiifMla rram aa wneonatUational aot paMid by Coagna^ — on* ta tha
Jadlrfaiy, the other to Ibe people and the Sutca. Then i> no appeal fnm tbcBula da-
fUoM la tbatty, and tha pnrtkal IDnalnllon abowa QtM Die conn* arocloaad agaiSM
an ipfilimka to laTiaw It, both Jadgca aad Juion bbg •worn to iImmIs ia ita bvor.
Hat rnuoolBg M thit lultfect U wpcaflaou. whan oat aodal oointiaGt is cspnai tannt
daelana that the law* of tha Uniad Statea, the OoutitatMO, aad titaiiea made a&iar
jlfpbkdix.
767
h, an tbe uiimn'' Uw of thi bad ; and lot itmMr CMtioo addt, * thU Uw Jajgw la
•very Sum tluJl Iw bound tfairtby, Kaythiii^ in \ht Mnxlitutlon et )air« of aay SlAto to
tliii MDtrar? nocwilliitanilu^.' Aud itina]rbaunrted, wilhiMit rMrofrrfalBlicn, ttiU
tra M«rmtir« govtntOMnt oonM cxUt witbaut « •unilu' ptoTiaan. Leak lor ■ monwiit
to the cotueqatBcs. If Sonth Carolliu oaniidan Uig rrvtnuc Uwi no constitutional,
and hat a riglit tn prrrttit Ch«tr ucvciillon in tbe pott c^ Charleilon, Itirnt vanU bt a
<la«r coostUvtionU «l|)««tii>ii to tbrir tM>llaettai io every utiier port, awl n« tvrewM
naUba«oUwtcdaajwb«ic; tor all trnpcuta miul betqaal. llis no uuvtoi t« repeat
an iweoaatjtntlonfll law i* no law, to loag aa tlio qnoatioD of iti legality ia to ba
ltd by the State ItMtir ; fov evury law, operating ii^urloiuly upon any IcmsJ inlunnt,
wfll lit prrbapa tboii^t,aiidartaiBly rcpraaenlal, at uncoaatilwlloiial, and, a* baa bran
ahown, there ia no qipotL
"ir thai doetrina had bean eataWiahedat an eaitLcrday, the Union wonld hare been
ditaolTid la Ita l&tancy. The eiclae lav In renaaylTuiia, the embargo and aon-wter-
conne lav in Ihv liaattn 8ut«w the (arriagi tax la Virginia, men all deemod Bpcon-
atltntional, aad mn Btore nneii«al b their opoMlon than any at iho kvt ne* eom-
plained of; but fbrtnnaicty none of than SLUeadiuovered that tbey had thfriiiht now
daimn) by South Carolina. The war into vtiielt »e vn* toro«d to ui]ifott the dignity
of tlie nation and tbe rl^thta ef onr dtlxctti might bare ended in defoat and dia||>*ce,
iaUMd of Tldorv and liunoi, if the Stataa who enrooaed it a ftiinona and unrowtitn-
Uonal meaaai* lud thought ibfy iMMMsd the rig^t of nnlliryinK the act l^ which It
«aa deelansi, and denying anp[dua fer to pnNaention. BatiUy and tUMqaally aa Iboa*
■neaaum bort upon aanra) mamhtn of tlw Dnion, to tbe Ugiilatmta of Mone dbl thk
tfleiant aitd peactablf retnoiy, aa it i* tallad, angcatt Itadf. Tbe diaoovtty tt thk iaa-
pottant faalnni tn our C?on*tltaliatt vat itaarrrf to the pitaent day. To tho atalannaB
of 6«nh Ounlina belcagB tho inrentian : and upon the dtiMBt of that State will
ufbitniiately bH tba «vil« of redndnff it to pcaetLoih
" If the docUlni of a Suta vM« opon the iawi of tbe Cnb>o autiM with it iiilamal
•tI4«ko «t Ita Inpeaclioable ahantdity, our comtitntiooal lurtory will alto alTool aban-
daat pmof that it trauld have betai repndiated with indignation, had it been pmpaaed
to form a featiire in our govprnaMfiL
" In our colonial itate, ahhon^ dependant on another ponr, «« very early ootw
•idffad onratlvaa aa oennccted by oemmon bitar««t with oach Mhar. Leagnaa vn«
Ibnnid for totamaa delcMO, and bafon (be DeolataUon ofladapandtwa wa wm knowii
ia oar aigicgiUe tfaaractn as Tn* rsiTKu CaiAKiBa or AmbiUc*. That dethire
and important atop ni talten jointly. Wo dmlaied enntlrta a nation by a joiat, not
bgr a**«cal acta ; aad whan tha tenia of oar oanltderaUon won rtdnoed to Ibrm, it wa*
1b that of atoltmnlaigDttcf aarwal Stattt^ by wkleh Ihey agienl that they we«ldcol-
l«cth«ly fonm one Batton, (be ilia parpoaa of ooodnotlng aome Mrttin doMoetto oonona*
all fcidgn ralatiaDa. In the Inatrwment fanning that Cnini it bund an artiste
dodam, that ' every fttala ahall aUdo by the detamunatiotii of Congiata oa all
Ion* whkh by that caatMrntiMi tkonid ba aabnittad to Ibaan.'
"Under the cotafmloiatiun, tlien, no Slate oonM lagally ansal a dedtian of lb« Cmi-
grtai, «r nfoM to aabmit to ib eieootioa i but no proridon vaa node l» m(«n« tfcoa
dtddtai. Congnaa made rcqniaitlona, but they wen not oeoifliad vitb. Tba gDt>>
tnuawt Maid not opetata on indlvidaal^ Tbay had no jmUdvy, no meaat of eot
Itctlag nranne^
'■ But the dcfMrts of the csorederatioa Mad not ba datalled. U«d«T It* opMation *»
Mnid aoarody be ealled a nation. V!b bad ndtbir proapority at hoM* nor maaldwa>
tiMi abroad, nia atata of thinfi could iMt ba eadiirad ; aad am ptawnl happy Oon*
«iWtai«MiBRDad,b«lfcRnadin*ilB,irtbklbMld«^ifauyM*dib Uwaattmttd
J
U(A|ta
^
fijr iiiiporuiit objwiA, thit uc uiKniaMJ in llie pnamblA, Midc in the mm*> and
th« atitbcoity of the people of tb» Uaited Sutoi, trboie d<lo|C»t« frintcd, u>d wi
CDBVFittioiii npprovtd it. Th« nod InpNtRM amonK thra* otgtcU. (hat whkli
pUurd flist In rank, on irli(tb *11 tin otb«t« nat,!^ 'tojbrm a nun par/al imiam.' V'
h tt poHlUr. that tma if there wctb no eipms prariAai (tTlnf; >npwii<ijr to tim
CoMlUvtioa and lawv of the Unjled Statw orer tboM «( the Btatea, it oaa b« eon-
crirrJ that mi JMtrumeDtmaikfM'tteiiatiNaeaf */uiiia)F<i*Mnpn:tU HirisN' ttaa
tlutt of tlio oonlnUratloa omU ba to coiiatmctnl hy the aaembitd wimImii of tmt
oowUij H to Mbatituta tor tluit oonradNatinn i tcnii of KOToninanl d*F«nt)«nl for iu
«iiit«iN «a Iha local intarott, the laity t^rit, of • Blau, or of a pnrraiting factiaa
fu a State T ET«r7 Bnn «f pbua, nmopfaitfkatMl nndcratandJDg, wbo bsan tkn igi
tian, win Hiw tuck aa aii*v«r aa will pmem the tJntoa. Meuphriical nlitlctr,
pnrMiit ci an impMCtkaUa dMory, amlii akmo have dtviMil obb tbal it <alealatnd
" 1 oontUnr, ibn, tbe power to anno] s law tS the TTnital State*, amuned bj
Bute, iatempntitlr iniA lit eiiiltn«t </ Iht fnwa, emIraJiaed erpnalf/ bg Iht IdUr 0/
Ai Cimlilitiim, •cwiM'Jbrtedty ifjipMi; ^iKaa«itf(St wilA <nnrK'''^jP''<"i'*M
" AfUr thit gmaal view of tbe teading pHntiple, we nuut tXMWiat the paHii
apjilicalius el it whieb is made in tbe ordinaoce.
"TIm ptiomhlD rMti it« juMifteatian on tbtaegromdi : IttKanei^ Mabe^ tbaF
tbe obnoxioD* lam, allboatch they pnqwn to In iun tea tailing nvenne, wtre^ In
natU;, intanibd far llie profoottoD «f nanufklBrt*, which pnrpant it aawrtu to Iv an-
oonititutiosii] : tbat tbeopnation of thea* law* b uoopial; that the anoiuit nbnl liy
lb«m t> gmttrr tban ii Ri|aired by the wants of tlie gorennnanl ; aad, fauDy, that tbe
{««i:«pd> are to be applied to objecta an&utborixnl b^ tbe Oa«*titiitio«. Tbeic «n the
onljr ramra alttgad to JiiMiiy an npra ofipadtion to ilia bwa of lb* ooanliy, asd ■
tbient c( aroedmc from the Uoion if aay atteonpt diould be marie to Mtforee ibenu
BM ritVulU a«knowlD(lgta tbat the hw ia qnration waa [oaied under a power
praaaly etreii by the CoiMtltBtloB to lajr and ooltect intpoiti t but iti caawtitu'
i« drawn in qnealion flitra tb« autfto of tboM who paMsd U. tIowc««r apfaiMt
purpoae tniy be in tbe preaent caae^ nolhlnit e*n be moea dangnMis tbau (■■ adiadl
poiltiMi, that an nneonitttntioaial pnrpow, entertalaed by tbe niembna obo aaeenl Ib.
law nnartMl under a nonetitutianal power, ahaU make tliat Uw roid : for bow ii II
piiqiMe to be amtUiiiad I Wbn Ii to nake the aRotie; 1 How often nay bad
]ioM« be bltclr impulol t In bow aaany caaei aie they oMenled by Uw fmfeailoaef
In bow many !• no doeliration of motive made t Admit thit dodritM, an4 ynu ^*e. I«
the Stnto* BB nneontrolled tight to dedde ; and tirny kw m»T be ananlled undrr thii
pt«ti>st. If, thnrffon, the abtnrd anddangemoa dottrine ahoold be admilteti, that
Stale may annul a» nMOoalltutlanal law, or on* that U decnu tneh. It will Mt
to Iha prroent caaiL
"The next olgwtioa i*. that tbe taw* in qwation opoikte unniDally. TbEa otgi
■My be made with tnitb to every law thai bat boca et can be fed, Tbe wbdoia
■Ban navor y«t eonttivad a ay«t*m of taxation that wonM opatatawJIh pprf(«t ejnalf
If th« sne^ua) ofwrntion nf a law makM ti unoonililiillanBl, and if all law*
deacriptieo may be abrugaled by any Stale (M that eauw, tbrM, iiid^M, 1* Ibn
Ca«ut)tntliMi nawottby of tbe ■lightest eBbrt for iu ptnerrnlion. Wc have
relied 00 it aalhe twrpetoil bond of owrCnion. We hare tecdvr<j it u 'h- work
the aesrfflUed wMotB «r the nation. Wa hava muted to it m : -f
aniety in the «tonny tints d melUct wltL a bndgn bit domaui
(oil with aaerad awe aalhe palladium ofonrlOMAiaai and. erlib aU tbe aolcmniti*
IPPRtTDIX. 769
I otlMr OUT Utm tai fortnoM htn and our hop* of hi[>-
fixMM ImalUr, Id iU dthoo* uid inppert. Wtn as tuUUkin, my countiymon, in
•tUobing thU imporlaim ta tb* Conatitntion of oor rauntrjr I Wu our duvotioa fmii
to tliB wntclwd, ineffiQuat, cluiiu]r contiimica wbkli thii new (ioctriiw would make
it t Did wo p1odt[B oanelToi to tbo luppmt or an ury nathing. ■ bubble Uuit miut bo
blown amy by tlio flnt Imoth of diMlEtctioD ( Wu tbia mU-iattnjUig, rUionkry
tboory iha work af tbo foofoiuid olatoiinoB, tbt udtad (xtriot^ to whom (be luk of
wutitiitioiuJ rtform wu ialnisMdt
" Did tbo nomo of Wuhiagtou mictiaii, did tb« Stata delibcntelj ntiSj. nch to
■nomolj Ui tbo biitory of funduDrutil IvKiiJttiaD I No. Wo vert not iniitait«n.
Tbs Uttor of tU* itnat iiutmnioiit h tnn fram tbU i«dU*l ball ; 11* lonpi^t'' diraatlx
contndiata tbo itnpatatloii ; Ito oplrit, iia ovidcst laUat, oonlndiou H> No, wv did uot
«IT 1 Our Comtitutioa dos not oontMD tbo abmrditr of giflBg powwr to makr la«r*
and UDotbi-r power ta reaUI them. Tbo Mg«, trh««o muaorj wiU ^wmji be rcrer-
cnoed, biTo pTni ni a piutiol, uid, u ibc; ha]>ed, ■ pormuicDt anutttstiaul oonii-
pocL Tbn r&tlior of hia eooiitrr did not oiBi hU r«Tf rod Duna t« lo |iol(atila «i *b-
cunllly. Nor did th« Statn, wban thtiy xvenJly ntlfiod it Jo m undar Uw impnauoii
kbit t veto oa the Uwi of the United Statfw wu nasrved to them, or that the; contd
OMtdai it by implioatioa, Search th« dobatm in all thtir waroiijoaj, examine the
^MChoaof the moit cealoiu oppoaei* of FcdMsl aotborily, look at tbo anundmaiiM
IbalwoN propoatd, — tboyoioall idlaiil; not aajrllaUo altered, not • vot« gfvtai, not a
notion made lacotTad Ibe rxfilicit ■uprenMcr giran t« tbo law* of Uw Union over
tlioee of tho Stntoa, or to abow that imfdioation, M il now contended, oonU defeat Ic
Ko, we bare not cmd I The Conalitntion b nill the objact of oiu re*erenca, tbo bond
ot ouc union, ear dofenca in danipr, and tbt uurot of otir pnnpi<rliy in paace. It ifaalt
daMead, u we hire r«<.'eiTvd it, iinooTTUiitMl by lophutiul aonttruction, to enr poetir-
bj 1 and the •aoriNcc* of local intetnt, of State prejuilicci, of iMmonal animoeittM^
that wen made to bring It into axfatenci, will e^^ be imlriottcaUy ollend for it*
•uppoct.
" The iwq nrmainin^ objettion* made by tbo ordinutoa ta tbeaa Uwi air, that tha
fuma iutentlHl to be raivd by them are graater tban an laqnlred, and thai tb* piODixJi
will be nncenitttutionally cio [Joyed.
" The C^uatltutlen huKivnn npreaely toOsngteM the ri^tof raUuK Taranne, tud
af detRBiuiing the *uin the [Miblic Fii|p!ncie> will tnjaire^ Tlio Slatea bare no control
aver thaennuaof tbti tight, other thin that whl«h reealte tram the power of changing
the nprewnteUTee who abuee It, and tbo« (inxmre mlreea. Congieea nay nndonbtadl;
nbuae tbia diaoretionary pow«T, bat Ibo lame mny be anld of others with whioh they are
vattod. Yet the diaerotien mait exiat aomcwhero. The Oonitltutlon be* given it to tba
Mpnaentntirec of all the people, checked bj the repretentatiMe of the Stalea and by
the exeeutlTe powtr. Tlie Sonlh Oiroliaa eonetnuition givee it to the kgialaiure, or the
coLivt'iitioD of a aingle Statay where nMther the people of the ditTerent Stntea, nor the
SUtca in tbrir arpanto oapadty, nor the chief mimletnlc e1n:t<<d by the p«o)dr, have
any leprearntalion. Which la the moat dbcrett dtapeaitlon of the tnwn I I do not
aak yoa, fellov-riliiotiii, which it the MnatitutJonal dlapeaitioa ; thai inatrQUMnl apeaki
a Inngnage not lo be mieandewtoad. Bnlif yen wen aeaemblod in genotnl tonvsnlloa,
wfakh would yon think the aafat dopotitory <jt tbla diictetionaiy power in tlio laat
raaoitl Wonid you uM a rJnnin, iflTing' it to tacb of tho State*, or would yonaanctlon,
ih" wiae jiroKririona almdy matU by yonr OonatitDtion ( If thieaboiild be thenwnltof
your ddihcnitioni. when prondinit for the fulUM, an yoa, can yen be imly lo riik all
that w* hold 'leer, tn tslablUh, for a leBpoeHy and a local pnipoat, that wbiob you cuuat
vol- I. — 49
770
tTEKDlE.
Mknowledip to bs dMtraetira tad vrm alniiid, m a RiMnl proTMoa I Carry oat Uw
taomqaaatm of tUi right imud in tb» dUhrant SMm, ud foa miMt pM«*iT« th<t Uw
«ldi yoor Modoct pmratt M tUa d^ voBlil nmr irbenaTfr any Uw o( tbe tTnltvl
SUtCB diiplautd any of lb« StaUa, and that «• (hovhl •oon omm U> be a natkm.
"Tho«rdinnoe,iritli thoonu knowledge of tha lUtnn that cbamictcriaw albnRM
alft*olion,tdUjonthattha|c<M(aliof Iba tax wUl b« DnocnittnitkflaUr fpfilled. If
tUt conld ba McertaiiMd with e«ru(nty, the olgNtiaii mmU, with nM«« profvioly, b*
iwrted Ibr the lav to applying the procceda, but aorclj cannot be oiged agaLnit tba
lawi loTjing tfae dnty.
"Hmmuc theatlc^Uonacantalnid in tho wdtnancf^ BxamlM tbtta Mrionaly, Ky
(Ulow-cUttana: JndxDforyouiMtvoi. 1 appval to yon to dettnnuw wbethrr Uniy an
to cImt. ao Mnvineing^ aa to Iran no danbt of th«ur carrectB««; and «mt U yon
ihevld coma to thla oRndotioo. ho<w Ita thay Jnitl^ Ih* ntkUm, imtnMn omna
whid yoa arc dinettd to pnnuc. BnTiaw tlUta ot|iwtlM>i, and lb* oeadoifana dnwn
btn than, ouo* more What an thay 1 Brciy bir, lltM. for nbing nrtnuie, aeooid*
bg to the SoQtb OuoUna ordinanoe, nay b* rightftiQy annaUed, rnika it be w bamtd
tt no law tTvr will or can ba fiaacd. Onngitai bavo a right to p«« Ian far nliing a
levmiw, and neb State haa a right to «pfO**tfaHr«MCUlkn, — twft ri^htadin^ly «p-
poaad to aaeb other ; and y«( U thb abwmUly auppoacd to be oonttbwl in an initrv
nmt dnwn lor the axpTM* pnipaa« of anjdhig ooUiiiona brtwcen the flute* and Uw
gmanl go* ernMcnt. by an atatanbl* of A» mart mligbtaBed ttaUiBca and pnraat
patriota erer (mlmdied for a rnnlht piupoM.
" In vain have IhoM B^nt daeltrad ibal ('«BgnM ihall h«v* power to ky and nDeel
tuaa, datiat, Impoeta, and welaw ; in tain have they proTidnl that tbcy riwU ban
pow«rt()|iaaUwi, wtiieh ebaU ba net'—iry and proper to earrr tboao powwa Into a»aw-
lion; that thoas bnri a»d that CvMlltiillM) ahall baiba 'mpanM lawortlMlaad,uil
that Iha JudgM in awry State (ball ba bound tfacnby, anylbfug in the eonMitaUaa aad
laai of any State lo the centiary notwilbitandin^' Id vain bar* Iba peofda of tba
•Huial 8tat«a aolcnmlj Mitat)on«] tbeae profiriona, Mada tbon their puaoionnt law,
a»d bdividnaUy aworn tomppart thaM «h«na*«r thny wcMcaUadon toaKaenia any
dBoa. Vain tmT!«loii« I inalfM^tnal ratlrlcttona I vtia ptobnatkna of oaihe ( aiai-nble
modkeryof ItigitUtion '. if th(> Iian majority of the rcAm in any one Stale My. on a
laal or mppnaad knowledge of tb« intrnt whh wUdi a hw liaa bm paiaeJ, docUra
tbcantdna fno from iu opnatiDn, — aay beiv it givia too Uttle, tbere too mncb, and
epMattt nwaqqalty, — h*r* it lulTara articloi to bo fr«o that ought to b« taud, — th*M It
bucaa thane Ibal eu^ht to b* ha^ — iu tlii* caa* the prwwda are inieiidad to ba apptM
to pnrpoaaa which wa do not apfaow^ — in that tba Buoml ndaail La Mon tJiatt is
wm&tcd. Cof4;i««.it ia tne,anlnT«atodby thaOoMttitntiaaarith tbari^tordMiding
llian i|iiial1rini arrnTillnH to their Hqad diacMkn ; noognM b oompoatd of Ibe rap**-
MDtodTM of all the SUtn. and of all tibepaoplaef all the Stataa i bat we, part of tba
ftafh tit ooe Static to whom tbe 0«oa(ihiUan baa glnB no powaron tba mhjoct, ftota
wbomitliaacxpraaalylakenitawaj, — wth wbohnwaobmnly ^teed tbat tbta Uoatti*
tatleMahall bt onr k«, ■— wa, ntaat of wboMhaTeawcm to rapport it, — wenMrataw-
gate this law, and awaar, and feroe otbaw to awaar, tbat it ahallnot ba obeyed; and wa
dotbift MttManaaCongNiabavanorla^t topaMTOchlawa^— lUawedoBotaUega, —
bnt becanae Ibey bare pawad than wllb ImpTOpaa riawa. Tliay are anoooaUlarlaaial
ftoo the tootirca of iboea who paaatd thorn, whkb *« can nanr with oattaliity know |
ftom Ibelr anoqnal operatioo, altboogb tt ia nnpoaiblaw fnn the natnm of things tbat
thpy ahovld ha tqnal ; andftoni Uudiipotdtiaa wbich wepnainnaMiyboinaikartlMir
proeaada, altboogb that diapotUian baa not baot daelamd. Ttk b tbe plain »™-iri')g
I
I
I
Anmm TTl
ef Um erdinntMk In nUtka to U<n wtiieh It kbtogiUa for ilk)!*! nncomtUatlonalUy.
But ii dow not ttaji tlieiv. It ttftalt, ia wpnM tWmJt aa tnipotttni (wi «f U>«<
Mitulioii iWr. ukI of Uw» pancd t« give it «ff«ot. whiih tun ncTor bma uOtgfA to I
lUMBrtitnlMiul. Tha Ccnulitiitkm doelairs tktt tha ladidU powers of tha Unileil
BlalM axtMiil lo oum uWng Widar Um kwi of tha Unilod Statn ; ami tbat web Un^
tiM CBMttatiai], and twatiwt ahiJl be panowiiBt In tJiu Utat* oOTitiluiUoiu anil U«k
Thajo^iaiy act proNnbai tba noAe bjr vbich the caw Bay ba fcniigbt bttbit a omirt
of III* lIiiit«it8UIaib)ra|ipcaL wbana SlatoliibniitlabaUikdiUapiMt Ibi* provinaii J
of th« Conuitution. Tlui ordinaoaa iladano that than ahall be no afipMil, nalcoa tbo 1
SBMa law |*njDOuiit to (fa* Cooatilotlon and lawi «f iIm Unltad Slatea, loreaa Jmlff** ''
anil jsRira to max [hat tliex vUI diiiRKanl thoir [iroviiioiii, and ovrn mdiM It fimni
ka a *ultor to attdinpt rriif-f hj afpcaL It farther dcciotw, tlml it aliall not b» lawful
tm tha aulbistitiw «S Uw Unllad Sul«^ or of tbat SUtti:, to onforce th« (layMOkt of datiea
bnpovd bjr the r«*aDUc lawa within III liiulta.
" Here ia B law of tho lTail«l Stal«e, iiot n«« pntmidad to b« niMMtatilutiiMial, n-
pcalod by Iho aulliarjty ot a imall majority at tbo TWton ot • «ng1e 8tAt«. H*a ii A
pr«rl*i4ii of tltfl Con^tilnlioD wlilieb la aoleinnly abn^alcd by Uie midc aiitbority.
"Oa aucb axpoaiUons and T«•Mnlng^ tha onlinanra )(roiuida not only an aMcrtioit
of tbo tight to aanul tha lawi of which it ooiDplaina, but to Miforoi it by a thr*«t of
Moediikfl from tho Dnion if any attempt i* mada to aiKut« ibion.
" TUa right tviaMdaiiiltdnndfroiD tfca nature of the i-'onaiitiitian, which tbcyaay
it a eorapaM batwaan aoT«r*l;[a Suim, who hava pmerml tlioir wttolc aoraMKUty. and
thanfora *r« antgMt to no luperior ; that bicauui lti*y uiada tha oetafMt, thiy oaa
break it, whnn, ia theii opiniaii, it hu bmn dpp&rt«it (rotn by tbe other Slata, FulW
aioua ai tiiia nourxi of nwoiiiug ii, it enliiti Slate ^id>r, and Audi advocaloa ut tho
lionait pr^adi^ea of thoM wlm Lara not atadiad tlio natnto of our govennmit nffi*
eiently la mm the tadioal error on wbicb it niti.
"Tho ptoplo ot tho Uitltad Sutai forawd Iha Conttitatlon, acting thraufih th« Slalo
IqtlalatarM in making tho oonipact to mmt and diacua iti pranriona. and atting in
wparal* conmtiena when th«y ratiSod thoM proriiiaiu : but the tcnna uiod in ita
oouitruotUiD show it to ba a goreramcnl in which the people of all tho Stats colW
liraly an rvpracntod. Wo arc okn rtovht, in tha ohoio* ot Praaidont and Vlo(-Pr«al-
danb Here tba Stataa hava no other fcaey than to direct tho modo in which tha
ntaa dull bo glfn. Tha oandldatta haviiig the a^o iiy of all the votea at* oboam.
Tha oleetoia of a m^ority of SHate* may have givon thalr rotco far one oandidatit and
yet another may bo ohoasit. Tha poopLa, than, and not tha Stalaa, ara rcpnoentad 1«
the ciemtire bnuioh.
"In thn Honaoor RopraaantatiTaa than (■ this dill«renm. tliattho|>Mf>la<i(onaSt«tp
4o not. aa In tha caw of Pr«iident and Vtw-Pioniknt. all vote fi>r tha hbc oOcoa.
Tlw people o( all thaStaUa donot*«ta(iiir all thomemhen. nuh Stata cUetlng it* own
ta|MacntatiTa& But thb cnato* DO oatarial dintinf^ticm. When choatn, thojr an all
WfWaantatirn of tha Cnited 6tatt^ not rtTmatntotirnt of lli* )ianiouUr Stala (Mm
whciwe theyoonie. They are paid by the tTiuted Btala^not bytheSteto; not an they
aoeoontable to It tar any ad dono in tho pcrfomuitco of their Irgiiklivo fiinetiona ; and
how*>«r they may in prantintt aa it ia iJiaIr ilnty to do, «ao*iilt and pnftr tha intMCOa
tt Ifaatr partionkr MnMitnent* when thigr coma in eoitfil«t with any etho' partial or
looal intOMt, yet it it thai first and hlgbcat duty, a* nf ream lata tta of th* Untlad
StalM, to (foBott th* fMoral ffeod.
"ThoOmatimtianortlie Unlinl SlalM, ihpn, ronna a pMminear. and not a la^pia |
and wtif-thir it be formed by oooipaot Irptwotn the fitatat, ot in any otbar nuwnar, ita
chaiwcter la tha Mine. It it a govcrumeat in whkh aU llw peopto an npamind.
773
APPENDtZ.
which opawtcs dtnellj on the pcAt^e tpdiridul);, not upon thfSUUs; tliey ntained
•II th« jiowtr ihcj Aid not graaU Bii( Mtk State, baring wfrwily putod wJUi *o nway
poMM aa to Miialitut« joinity witk Um oUin SUM % nngla utiMi, unnot from that
period pouts uijr rigtit to vKctlc. bocouM nwk •kchuom Aim nM bnak a iMfiM^ bat
■Itatroji theanily of a iutU>ii;aii<l any iqjury to that onltrb nut only atnaoblrkieh
w«nU (Mult train tha «oiitm«Btian of s eomjNCt, but it it an otttoee iffulMt the
wbotc DbIob. To «y lliat wy State niy at iilaMnn' aen^e froo) the Union uiti>mj
that the I'liilxl 8Cat«a an &M a Ditioa ; bcoiiui it would Ix a aoletiui to cont«i»d
that any fan of a (MtJoa miglil diwolvr it« cuRnKtian vith the oth«r partiv lo thfdr
ijgurr m min. without oommiltln^ any affimca. SnvMten, IDla aoy otbft nvoiatioouy
a>:(, niay U morally juilUinI liy lh« rxlmnity of oppwwaon ; but to tall it a <oii>ttlu-
lioual right ia confciiudiiig the mtaoing of tcmu ; and can ooly h« dc«e thiaa^ gtom
«mt, or to dMvire Ihoae who aic willing to amril a rlfiht, bnt would ftata hafare thny
made a KTolutiau. or incnr the pr^naltim conaaqiwnt on a fiulura.
" Btcaw* tb« Uaion wat fononl liy ceonpatl, it la mbi tb« partfa* to that ooin|*ot
may, whan th«y feel ihcmotlvHt ^grieved. d«prt fraoi it ; bnt it i« (oocuely bfoaiui it
ia a compact tliat thty McnoC A moifact ii aa agnonMit or UMding oblij^tion. It
may, l>y it* Umu. luvn a unciion or penalty Cor tla brtaoh, or it may koL If It oea-
tataa no wnolion. It niay be titcken afth no Mhet ooiiatqiMace thui luotal guilt ; if It
har* a unctioo, tht« the tnvoch ineura ibie deiigmtad or isfilied poalty. A ki^pia
bet«««a indqteadent Bation* generally baa no nnetioa otfaw than • naral one ; or, if
It dionid contain a ptnally, aji thrr* ii no oommon Biperior, tt cannot ba enforcal. A
^ireniiDmt, on the uoiittary, tluny* haa a tanetlon, «X|naa or ImplM ; and in o«
caM it b both nemararily iiapliod and eipiwaty ^*—. An attempt by fatM of anna
to dtatio; a gonnunent w an olTenci^ by whateria meam th« coDatitational coatpaot
may htr« bMn fonnrd ; and nth govcramtct hat the right, by the taw of adf-d^ftaicn,
to paM acta fur puuiahing the oirrudtv, unltaa that t%hl it nudlfiRl, rMlt«l«»l, or i»-
nuned by the cowtitational act. In «iu lyaWm. although tt it modiftad in the ewe of
twaaaa, y«t aollMirity m ex{«euly gina to paw all lava uihl— uy l« oany i(* powtn
Into «4hct, and nn^ tLli. urant praviiioB haa boon made for pnnishii^ acta wfaleh
ohalrwt the due Hiaiibititniliou o( th* law*.
"It would aRin mpttfluoin taaddanytliing tosbow the natnia of tkamton whi'^k
connoda na ; but a* enonoooa «piiiios» on thii sntgcct are the fbmihliaa of (bdriaiN
the moat diolriKllre to our pcatc I miwt giTt aoma fsttbca developaiaBt to my rien
on thit lulyMt. No ana, Mlow-citimu^ Iw* a MfllMr ibtwmkc for tha wiimid (ifbti
of the Btat«a than the raag;i<lr>t« i*ho now addreaaca yoB. Koono would make graaMv
pcnonal Mcrifioea or oDiaial uctfioui to defend tlirm from TioUUoa : hnt e^ua) esn>
mxtbotalcra to pmitnt,Dnth<ir part, on imprDpt«inUrf>renni>{Ili,oriTaamptiomor,
111* Hffhta tlioy have TMtad in ihe aaiion. The lino ho* not bnn to dlMinctly drawn
•• to ardd ilcaibu In *om« «a*M of tha ann^bw of powir. Men of the beat ialmtMna
■■d aoundmt (lews may dUfer in tMr conatraetloM of aama pan* otf 'the OooaUtotl«n ;
hut thNe are othm on whicih diapaawowale rvBoitiM can bar* M doahu Of thb sa*
lure sppran to be tha OMuned right of atcndon. It nata, aa we hare aeoik, on th*
allt^td ii»dlvld«il Mnntgnty of lb* Statai, and on thnr having braed. in thii aoToragn
capacity, a tovipaci which la ollad tha OoMtUatloD, rnio which, beoiuae tbry mad* it,
they hare the right to seonl*. Bulb of iWaa pcaltkra* are ammroca, and aome ol tha
•ignoMttbi to jam* them aa han> btan anUolfoiad.
*■ T^ SutM aannlly ban aot cetaiMd ibttr a«tin Kitera%tity. It hat l««B thowa,
that, in bKomiag parts of a nilion,not wtmbanof altago*. th«y aairti-jid<red Baay af
th«ii(Bnitial|wta<f aovfrelitnty. Tha right to make treaties d«Utc war, levy tuw,
«md» cicUiiTt J«dtd«l and Irxlilativs powign, wan all of than fnattkna of lortr^ca
APPENDIX.
778
power. Tba Stato, then. Tor all th«as Jupartaiii pnTpocM, imt* tv> longer BcirtMiga.j
Tht ollegiBOca of tbdr cilivnii mw tnuufcmd. In Ibe lint iiutuiot, to the gorcran
ut Uw Unilad tit*tMi; tbuy btcunv Aaarioko dtLccno, aiul on>gd ohodwiice la Uie Con^
•titittioB of the Urjitcd Sl«tai and to U«» made in couformily witk tJio (lottvr* vo
ia fiiiiniMi Thi> Uit pontina baa not Wn and cannot be dcoitd. Ilov, thim, eaa
that State )w Mid I« t>« UTCMignand bidtpcniivnl, whoiwrliUrntoo'tubodwnca loU**
not na(te bjr it, and wKow in^{btr»l« an avoni to diirq^aid thow ktrx fbta Oirj
eonw in oonttct with tliou |«i(ad bjr asotbar t What ibowa ooaiJiuiTclj' that tlir tilatM
aUBOt b* laitl to ban rnervcd an undivided voTFitJ^ly ut, that llief sxpicudjr ■
Hm right to panbb traaam ; not trauon agunat tbeir npatal* power, but
agaln«t tfa« ITniied Stalcii TicMon is a>i oirnnce apUiut tvtinifiity, and
nuat t«iid« with Iba pavnr tn pnnlah it. But Ibe nwrrBd rigbta of ibe ttutw ara not'
lev Mcred baoaUM thaf han, for tholr comtDoa intettst, nadc tba gnnoral govaratnetit
tba dapoaitory of th««e powen.
" The unity of our |«titiMl character (u hat her* bcou ahuiru for anotbar purpaic)
«pinm«Du«l with ita nrj oibrtaBoa. Undar tba tOfal gavnniunt we bad no tfuat^i
duiactcr; our oppodtlon to ita opprMtkina fa«g^ a* Curntu CuLi>niKiL W« wattl
the t'KITICO Stath under tba eonEadetation, and tba naiu« tat ptrpftxMni, and thai
union rendartd mon perfect b^ tha Fedanl Coutitution. In none of th« atagia did ]
vra coiuideT ouimIt«9 in any other light than ai forming one nalioD. Trmtiiai «nii atll-
ancea were made In tlio lumo of all. Troop* mm niMd for tha Joint dafunrh Hnw, {
than, wfthaQ tbeaajiioofk, that andarall obangaaof onrpuiit!onwi- hod, fordmigiuli^l
parpoat^ and with defined powrn, nraattd naliono) goirnnmenta, — how ia it. that ths'j
motl parieot of thoK anvenl modes of nnioa ahould now be coniidorvd u a mete le
thtt may be diiaolf od at pleaminl It ia from an atniB of trmu. 'OompacC'Unaedl
irnoQynieua with ' iMgae,' altliougb the true term ii not employed, bn^iua it would al^
onoa ahow the fallacy of Ibe reaooning. It woulil not do to lay that our Coiutitnlica
««■ only a league, but it la labored to prove it a compact (whlrh in oat latM It la),
and than la argue thai, a« a itagaa <a a oompaet, arar; compact betvran nation* mattJ
of courae be a luagun ; and that from mob an Bng^nment tfttf aovaralgit povn ha* M
ri(tht U> mcnle. But it baa bna abMrn that in thia lenae the Siatea are not aovrrMgiifi
and that, even if they wore, and the national Conititulton hitd been fomuil by compact
there would be tio right in any one State to cxonnrala Ittclf from lu obligation*.
" So obvloua are the muoii* which forUil Ihl* aeorulon. that it ia ueeiaBaiy ealj to
•Jluda l« them. The Union wa* formed for the benefit of all. Ilirai produced by bib*
tual •Bcrifieea of internrta and opiniona. Can Ihoao taorifiea be recalled I Cu tfc*
Stalm, who ma«n»i<iinii>ujily autreiidcrn] their title to the Territorita of the W«al,r*<att {
the grant I Will the inhabitanta of the inland 8tal** •fme 10 pay the dutiee that maf
bo impnuvl. without ihoir oaient, by ihoao on tba Ada»ti« or tbe Quit, fot their own
bravflt I Slintl there b* n free port in one State and oneroua dutie* in another I !Ift
one belierea that any right cziita in a aingle State to involve the othnra In tbra* and |
oountloe other eviti, «0Dtrary to the engtgemanta aolamnly mada. Evtcy ou» tnuiit I
thai the other Statn, in aelf-ilebQCR, mn*t i^ipM* at all hanrda.
"Thte* are ibaallemalJvet that a» preanittd by theoonvtntion t Airqical of all tha {
acta Ibr midng rereiue. leaving tbe gonmment without the mcana of aup|)ort ; or aa '
aoquie«e«uo* bi the diaaolution of our Union by llie tnecadon of one of Ita niembet*,
Wlion the flrat was pmpoaed. It waa known tliat It could not be liMenad to for a miv
L It >u known, if fon^ waa applied te oppoae the oxi-fulioD of thr law^ that it
be repelled by R>roe ; (hat Cbmcreaa could not, without involving ilwlf in dUgiica
and tha oountry lo min, aoetde to the propoaition : anil yet, if Iliin ia not dune on a
(IveD day, or if any attempt I* made toaxaente thelawi, tlw State i^ b; the ordinance
1 aoqui
[ Whei
mt
774
APPBKDIX.
dc«Und to b« oQt of ths VnbM. Tk» m^Joritj- of ft Mnmitiim MwmUtd for tbx par-
poM turn illciat*i1 tbme temu, or ntber tU* k^ccOm «f all UnM, in Ibe Mnu of tlu
peojilo or Swith C^nlim. It la tnio Dim th« fp>*«niM' of Uis Slat* ipoiks ot tha nib-
IDiMioao(tlieiTgnev«ii«MtoaomTi>iitlnnur all theSuto^ vhick, beasya, tbe; 'iiin-
cmly and onxiouilr Mck and ihairg.' Yit thu obri«iM and conMitutkaial maJn of
obUiuing the acUM of the <iih«r Sutce on Uie conitnicHoo oS tha Ftdnal can|Met, ud
uucDduiK it if cmiMaarT, kaa nenr b«en MtemiitMi by thorn wlio bant nrgnl tba 8t«t*
on to tliu datnictfTc moMOM. Th* Stau Bright bare pnfwaHl to rail (or a ^Mnl
MOTaittkm to the athfir StalM ; HidCottgrait, ifaniftdeiitiMnibcraf tbuncoMHRMl,
moat bavc callnl It. But tlio first maguttata of Soutb C^rdlliia. wbcn ba iiiij iil a
bop* tbal, '00 a revinr fa; Coagreoi mid tho fonctlomrfM of tha Rtncnl gov««nHiaal
of tbe merit)! of tha cantroitnj,' miRh * ouTiventfan will ba anxnttd to than, mua
hav* known, ttixt ndllitir CoogrMH iior any fiiDctioniiy of tho gnnnra] gorcrsmntt haa
authority tc oiU >uoh a convcntioD, nnlcu il be ilrmuidid W tvo-thinla of tba StatM,
nia mKKistlan, then, it anolhtr inalaneo of tha tocUm* inattoDtkn to tho prOTirteila
of tho OntiMltntion, (rithwhicb this cridia baa b««D Bmtly bnrried oa ; orof tlioaunspl
to [mmude the people that a conititntional remedy liad bmn tou^l and nfaatd. U
the l^fpaUturr of South Carolint ' anxioualy d«ir* ' a general oonTtntian to eooriikr
theli oomplatBU, why han Ihny not madii applicatjon for It JB thtway theCoaulitutioii
points out t Th« aaMtUon that Ibey ' varutmtly Mok ' it li ompkuly MgKilml I15 ibc
(o) Thi* dorament Ii nnilnstood to
hare bfen jeepntrd by the Moinent jartst,
FJnnl [.ivlnK>lon, Hnnt'i Life of IJr.
iiii;rtaD,~ 371 I Paiionli LIfc of Jaoktoo,
III. 40«. It wlU not b« inapprofout* to
pho* bMtdo ItoitTMl* from tho InaiigUKl
Addno* of Fnatdent Llncofai. Mnring tba
Mme ground; —
" It i* wTriity-tw« fMM dMO the fint
fnaoguntien o( a Prtoidont anilar our
national Conatitntion. Itaring that li»e
fifteen dlftnent and greally diattngniahed
clCliuin* bava. In wcowjIom, odniniaMred
th« MiMutiro branch of lb* nonnunaiiL
They hire eowluetal ft (brangb m*ay
fttUi, and generally with great wioww.
Tet, with all tbla acope for preotdeKt, I
BOW entrr npon tho Kma taak, for tha hcfaT
oonillliitinnal t«m of fonr ywori^ vn4a
gnat and peculiar difioaltj. AdiBni|rtiaB
of tbt Federal Unioo, berrtolbte ooljr ntea*
aead, la now fotmldably altmiptad.
" 1 bold that, tn oaotimpWion of >nl-
renal lav and ef Uie Comtllntion, the
lliiloa of tbtoe Ktatoe la perpriul. Per-
pehilty U ImplMd, if not oxpr^acd, in lb*
flmdanienlal lew of all natkaal gorerv-
BMnla. It b eato to aeiRt that n>o gov-
enunent pvoper enr had a pravMon b U*
otg*D<i:l>«forltaow«t«nntiiatIn«. C»-
liniM (o exocMa all tbr espnaa promioiw
of our natioMd Conctltatfoo, and tbt
Union wUl ODdMn FntTtr, It bdof to>
paodhle to dfoboy it. exoefrt by tono
arlion »ol providnl Cor in tbe iaMniooai
itaelf.
" Attain, if tho Onlud StalM be Mot a
goremmonl proptr, tat an aandatiaa «l
State* in the aatoro of tho eonuaot Diaidr>
can It, ax a contract, b* paeotabty «nfna4*
britm tbuall the partteawhe meilr tlM
Ono party to a ocntrart naap rtolato U,
break it, (D to apeak, but de«a It not roqtrfn
all to ImfiiJly mrind It t
" DeaceniUag front tbse gtatnl {irrla-
elpla*. we find tbcptepoeidoa that, Intagal
conUnptaHon, tb* Ualoa b perpetual,
coaBt»Hl by tho hlMory of the l^nion it-
tclC._jmie Uoiaa ia mocb older tban iha
ConnitntMii. Il wm fisnaed, la Utt, bj
thit ArtiiJoe oT Awflatlaa. in 17T4. Il
vaa malorad and eoullnnpl hy the Debb-
ntkn of IndefitMlBnatt Id 1770. It vaa
farther matured, and (bo faith of all iha
then thitteen Statei expicnlj plighlad aad
enpgod Ibet tl ihooli! beixrpHBal.liy tha
Artiolt* of OsalManition, la 177B. Aad
finally, ia 1 767, ono of tba ikolaied otjoett
APTHIDIX.
775
tn onltiniog uidMttbfiAlng tht Conitit-
utiou WW 'tajarm o »»rt per/td tMim.'
"But iT ikounction «f tfao Ublon, t»r
«IM^ or t^ ft jatt ooly, or the Suil«f. ha
UofltUr poMlhlo, tbo Uoion i* low p«rf«ct
IhU UCan, (bt CcUtilulioD having iMt
tb« viul «km«it of peip«taily.
" It toUotn fnat thiete ncwi. Uiat no
Sut(^ upon iti own awn modoa, cui law-
IMy gM «ttt of tli« Dnton i Uui ittalstt
ud eniiimmxt to th>t «db«t u« hgtllf
Toid : aad th»t Mb of Ttdnoet vitlun
U)r SUtc oa SUM, Mgalait the aulhoritjr
of Uio Uultol StiUai, an latiimctloiuifT
m t«voUli««ttty, MMnling ta circum-
Mancea.
*' 1 tbetdbn coDildcr that, in view of
th« Coouftulkai and Uie IawJ^ the Uiuan
It nnbrolon, ami, to tha «al«iii of inj
abitily, I *ball taltt ans, w llii Coualilii-
tion itaelf aptcady cDJoini upon me, tlut
tlio Uwa of llie Union bo [nitUrully cic-
cuKd la all Ui« Hlatiui. DoliiK IliU 1
iImdi to WoMlr* tiiii|>le duty uii my jwl,
■■d I ahall psrfom it, u fu ai practicable,
tuiltM my rightful ntutcre, tli* Ainttkaa
ptopltv ■ball withbold tliorequinilciuawu,
or, in tome autboritativc manner, dinct
the Mntnry. I trust Ihia will tint b« i*>
KUiI*d a* a in»iiK>i, but ouly *« a dwlarvd
|iuffie« «f tlw Ubuni that It will coii*titu>
tMnaUj dffoii^ uid TTwIntfiJit Jtaelf.
" In doing thu there need be no hlood-
ahnl or rloUnM ; and thrr« kIuJI t« none,
witM It tit Torced upou tbr nitional a«-
Utorlty. Th« poonr confided to nw will
bo lued to hold, otcutif, and |i»iMi th*
inupMly and plana b4onglnK to Um gor-
•nuMSt, aiul to coUfct the dutin and
Impoab ; but, beyond what may b« nee(»
MUj far thcM objettj^ tbtn will be no
fainnon, m n«ng o( fotco agslMt of
amoag the ptople anywhara. When bca-
Ullly agalMt tin Unlta4 Htatei^ tn any
itttarlor lunilily, thall ba ao fftat and nni-
Tena) •■ to fnvcnl ooHpctent mildanl clt(<
an* fmn haUJng tW Fadatal ofcea, then
will bo BO atlampt to fora* otmiaaaa$
atnngtn among tli« people for tlial ob'
Ject WhiW th« (trict legal right Hay
exitt in tho gonrnncait to nilMco the
ttxefciMef tkcM ottee^ tWattentpt to do
•0 would be M Irritati^, and ao ntarlj
inpractiaable with all, I dHm it beltn.
lot tlte timiv to (ongo the ucee of amh
cffiota.
"The mail*, nnlcM rt|allod, wHl eon-
Umio I« b« (unlahed ia all parte of tke
Union. So br m po«ifale th« P*<>pl*
•rerjvrhien ahall haee that vnee «f pc«-
fett eeeurlty wliicii I* nwdit (aronUe to
calm Ihoe^t ami nArvtIon. The ooune
ben isdicaled will be (allowed, nnlee*
current arenla and esporieuae ahaU ahow
aiaadin<atiaAorchaiig* tobeimper, and
in oveiy tsie and toLlgtucy my beat die-
crotion will b« exentMd, aoxudlng 10 «it^
cumUanoc* actually dcialing. and with •
riow a»d a hope of a )>«acL>lal wlntioai of
tlM netkaial iruiililv» and llin reiCoiailoa
of fnt«fnal nymiatliica aud alTectione.
"That thorn BTo perioiu in oon aNtion
or another who aeck to iIuttDy the Union
at all evoDIti end ar« gUl uf any )ii«ta(t
to do it, I will nultliN aSnn or deny i
bat if then be •nub, i need nddreee no
weed tn lh«m. To tbeoe, however, wh«
lore the Union may I not efieak I
** Berore entering upm ao grate a nat-
ter a* the dntnicUun of our uatknal
Cibrio with all it* baif<t<, ite menedt^
and it* bopM^ wo«ld it not bo wfei to
aecorUin peodMly why wo do It t Will
yon hanrd h> deeptrUe a *tep wkile
then i* eay poaibility that any of the
ill* yon By from hare no real orietenoa I
Wmyo«, wUle thecertalBllhyou fly to
•re greater than ell the lealenee yon Sy
IVoa, — will you ri*k the tomwiwion of
•0 fearful a mlitakcl
"AU proCta to be tontent In tho
Union If all oetiMilutiwi*! right* oaa te
tnaintained. Ii it true. Ihrn, that any
(i|^t, plainly wriittn in the Cooititntka,
haa bean dented I I think not. Hapfdly,
the hnaan mind U ao sonetUatol that m
party am mch lo the andadty of <Mng
tliia. Think, if yon enn. «( n rin^a in*
tlnnoe in whkti n plainly written pt«-
n*ian of the CMUtitntkei haa e*te been
denied. Ifby the oMie force of nnmbcn,
n ■qiortty ilMnld deprive a nunorily ef
^db
776
APPEXMX.
vaj elouly written OMiMitntion*! right,
U 1^0x1, 111 % inonl point of rinvjiunliy
nrolttliuD, — otttaiiity wtmld if tuch lig^l
nn ■ vilsl oue. Itut luch u Dot o«r
eua All tbe viul ri^U of miooriliM
tni of itidi*i<lDiU on ao pldnlf aMured
U tbtm bf alllnnatlon* and DCigaliaiM^
^uaDliiB and proUilalioiUi En tlu COu-
(litution, tiiBt ixintroverw* iutrt0 ariot
tonccming ihcot. But uo orxanic la*
can (ivii bit (niiiinl with > prariitoa *|i«-
riricilly apiilinUc toenrj (|iiaitloa wlikfc
may oronr iu pmclici) ■dnuniitntiaa.
K« fetoigbt ran nnriciiata:, noruijdoMi*
mdnt of ToaaonabU Iragth i«ntaln, inc-
|<mH |>ni*i«lon* torati F«ufbl« ^u««Uoui.
Shall fngitifoi frani labot b» (nmodntd
hj national or hy State aotborityl Th«
OonMlIntlon does not rxjniuly ta;. ttaji
Cungrat* jmihibll tlanty in tlie Terri-
tcrioit Th« Conattlntioii doM not a^-
pnMl*M]r. ifiufConfEtvapotactaUTurf
tn thu TrrritoriM r Tlw ComUntion doca
not cxjimslf mj.
"Pram qoaMtona «f thb claaa ifnfng
•II our oonrtitutiona] wntlOTWilta. and
we dtviJr u[ioa tliem into majontie* and
BinoritJM. If the minority will not b«-
qnletca, the niijority ma*t, or the gorvn-
intmt innit oraia. ThenianoaltfraatiTc;
far «antiiiiiing tlic gorcrntnonl b an]ni-
aaetnca on on* aid* or th« otlirr. If a
mlnorily fn ain'h caaa will aeved* ntlior
than a«i|<il«ac* tb(7 mak«> • ]>MOfd««it
which, in lirrn, will divide and ruin them ;
tot a miiioritj- of tbeii own will aeteda
(ram tbcM whcnercf a m^^tjr fthiaa to
b* -oontMlled ty addi nlMrity- Fev in-
•tan«^ why miiy n^A any partlon of a new
OMManwy, ■ yw or two hewe, arbitn-
rily aeoeda agaia, predasly aa poriioM of
tb* prtaent Onion now claim to aand*
from It t All who choriA dimttioa wnti-
MMt* an now htinj; tdnntod to tba exHt
tmniNr of doing tliii.
" b there BDiA pcffect identitir of ia-
tenstn among ths Stale* to compon a
MW unbw, a* to prodnoa hantouy oely,
ui pnrrat n*twtd Mwiiiwi 1
" Pbiinly tha centnl ides of nYoarioa
b tha munet of anaitky. A mi^^t;
held in itatmint Inr MnMitntfama] cIik
and limllatto■l^ and alwaya cliangiog
taaity with debberela (Innge* ol potmbr
oj^dniiemi and aenlinMDta, ii*Uie only tnu
aoTsnign of a froc people Whuna rw-
j»«» It doH, of MDoMty, fly to manhj
or ta dcfpotiun. Unanimity la inpaari-
bk; the nik of a niinotily, •■ a ^naa-
nent amuiecowBt. Ushollf IT
*o that, itjcctlnii tlt*mi^iii;. :■■.
•nanJiy o* ihapoIiMD la aataa lonu b all
thatbkft
" I do not forget tha poaUfmi aauiniMl
bjr wnc, that oonuitutbnal •iiieition*
ate to bo dwbltil by the Sapreine Cvuil^
iiur do I deny that tuefa dccUion nnut bt
binding in any cm*, npon ttw |i«rti>» to
a wll, a* to tb(i obJKt of thai Mil, white
th*y an> atao viililled to vny high rea^MCt
and MnaidentioN in aO fmlld nuea I7
■11 other dupartment* of At gavenunan.
And while It b oMoualy pouIUa that
■Dch detblon my bo erroneone in any
given <a*ei atill the eri) dieot foUowiBgi
it, being limitrd to ttot putieabr emtt,
Willi the ciMnM that it may h» ovemaled,
and nerer ben>iB« a ptncedent {et other
oaaes, can farltrr be borae than coohl the
•nb of a dUfrreal prs-tlee. At tji« mm*
tinM the caadid tillaen MUM coDfiMa that
if the policy «f the gortnnMat npo*
vital qnealimii, •ObetinK tho wboJc }■»■
[Je, it to be invToeably 8xad tly dacbioM
of the Siipmne Conrt, the instant Ihty
an made In ordinniy littption bHwceM
partia in pcraonal actiona, tW yiajdc wiU
ham lyaiod to ba their own mien, liaring
ta that extant inctkatly rsiim"d tbtir
guiuiniaaat falo tlio hurd* of that end-
ntrnt iriboMal.
" Nor b tbtn In t)il« ei>w any imault
upon the ooart or the jvig^. It i* a
duty from vhkb tbry may n«4 (Irink to
deddt caMa prapeily b^i ii,'
and It b no ball of lli' k|
to tar« their decialon* Ui \
pu*ea. One m-tioii "f nor
beVM ilnTety i« r '
vxtnidcd, wlilb '.:.
imu^. anil oitjclit tiol Ici :
Thb b the only ■n!at«>Ual iti ■_
APPBMDIX.
777
fugitive aUre diiue of th« Coiutitation
uid the law for the mppresaioD of the
fbteign slKTo-lnde an each ■• well en-
foicnd, perhaps, oa uiy law erer can ba in
a eominunitj where the mont aeiue of
the people imperfectlj uipporta the law
itself. The great body of the people
abide by the dry legal obligation in both
aaia<, sod a few break orer in each. This,
1 think cannot be perfectly cnred ; and it
wonld be worse in both caaea a^ltr the tep-
antion of the sectioDs than before. Tha
foreign Klave-trade, now imperfectly mp-
preaaed, wonld ba nltimately revived
without restriction in one section ; while
fugitive slaves, now 011I7 partially snr-
rendered, would not b« aotrendered at all
b; the other.
" Physically speaking, we cannot wp-
arate. We cannot rentove our respective
sections from each other, nor build an im-
pasiable wall between them. A husband
and wife may be divorced, and go out of
the presence and beyond the reach of each
other, but the diSerent psrta of our conn-
try cannot do this. They cannot bnt re-
main face to face, and [ntercouree, either
amicable or boatile, moat continue between
them. I9 it possible, then, to make that
IntercoQtBe toore advantageous after aep-
station than h^ore ? Can alieoa make
treaties eadet than friends can make lawa t
Can treaties be more faithfnlly enforced
between aliens than laws can among
friends I Suppose yon go to war, yoD
cannot Gght always ; and when, aCler
much lota on both sides, and no pin on
either, you ceaae Qgbtiug. the identical
old questions, as to terms of intercourse,
are again upon you.
" Thia country, with its institutions,
beloDgs to the people who inhabit it.
Whenever they shall grow we«Ty of the
existing government thej can eiercise
their commKlUmal right of amending it,
or their revolutionary right to dismember
or overthrow it. I cannot be ignotant of
the fact that many worthy and patriotic
citizens are deuroiia of having the national
Constitution amended. While I make no
recommendation of amendments, I fully
recognize the rightful authoritr of the
people over the whole autgect, to be exer-
ciaed in either of the modn prescribed in
the iastnuneDt itself ; and I ahould, under
existing drcumatances, favor rather than
oppose a fair oppottnuity being afforded
the people to act upon it. 1 will venture
to add, that ta me the convention mode
seems prefemble, in that it allows amend-
ments to originate with the people them-
selves, instead of only allowing them to take
or rqect propositions originatiNl by others,
not especially choMn for the pnrpoae, and
which might not be precisely such as they
would wish to either accept or refuse. I
nnderatand a proposed smendment to the
Constitution — which amendment, bow-
ever, I have not seen — has passed Con-
gress, to the effect that the Federal gov-
emroent ahall never interfere with the
domestic institntioiis of the States, iu-
clndjng that of persona held to service.
To avoid mlsconstmction of what I have
said, 1 depart from my purpose not Va
speak of particular amendments so far as
to say that, holding such a provision now
to be implied constitutional law, I have
no ahjection to its being made express and
irrevocable.
"The Chief Magistiate derives all his
anthon^ from the people, and they have
conferred none uxKin him to fix terms for
the separation of the States. The people
theiDselves can do this also, if the; choose ;
bnt the execudve, ea anch, has nothing to
do with it. His duty is to adminijter the
present government, as it came to his
hands, and to tiausmit it unimpaired by
him, to his successor.
"Why should there not be a patient
confidence in the ultimate justice of the
people I Is there any better or equal
hope in the world t In our present dif-
ferences it either perty without faith of
being in the right I If the Almighty
Buler of Natbns, with his eternal truth
and justice, be on your aide of the North,
or on youra of the South, that truth and
that justice will truly prevail, by the
judgment of thia gre*t tribnnal of the
American people.
778
APPENDIX.
" By tbe &«iim of the gOTonment un-
der which we live, this nnit people hive
wiael; givea their public wmnts bnt little
power for mi*cbi«r i tod have, with equal
wudom, pTOTided for ttie ntorn of tbat
little to their own hauils at itrj ebort in-
tarralt. While tbe people retain their
vlrtoe and TigiltDce, no sdmibistntion
bj any extreme of weakneei or folly can
Tcry seriooily injure tbe gaTemment in
the short space of four yean.
" Uy Mantrymeii, one and all, thin^
calmly and totil upon thia whale mlgect.
Nothing Talnable can be lost by taking
time. If there be an otqect to hurry any
of you, in hot haate, to a step which jon
iriU never take diiibenUety, that object
will be fnutrated by taking time. Snch
of yon ai are now iliasatisGed still have the
old Cooetitntion unimpaired, and, on the
•eositive point, the laws of yonr own
framing under it ; white the new adminit-
tration will have no immediate power, if
it would, to change either. If it were ad-
mitted that yon who are diuatUGed bald
the right side in the diapnte, there still is
BO dngla good raaaon for precijntate action.
Iittelligenc^ patriotism, Christianity, and
a Arm reliance on Him who has never vet
forsaken this fcvoTed land, an still com.
petent to a4f>^ i° the beat way, ill oar
present difficulty.
" In your hands, my dinatiafied fellow,
countrymen, and not in mine, is the
momentous issue of civil war. The gov-
emmeut will not assail j/ou. Yoa can
have no conSict withont being yontselves
the aggressors. You have no oath r^is*
terad in heaven to destroy tbe goremment,
while 1 shall have the most, solemn one to
'preserve, protect, and defend it.'
" I am loath to dose. We are not
enemies, but friends. Wa must not be
enemies. Though passion may have
stndoed, it must not break, our bonds of
affection. The mystic chords of memory,
stretching from ever; battle, field and
patriot grave to every living heart and
heatthstooB, all over this broad land, will
yet swell tbe chonu of tbe Union, when
again touched, ss sorely they will be, by
the better angels of our natore."
END OP TOL. I.
3 fclOS DID S?D St3
STANFORD UNIVERSITY LI6RARIES
CECIL H GREEN LIBRARY
STANFORD. CALIFORNIA 94305-6004
(415| 723. U93
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